      [Cite as State v. Burner, 2020-Ohio-2930.]




                             IN THE COURT OF APPEALS
                    FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO




   STATE OF OHIO,                                  :   APPEAL NO. C-180516
                                                       TRIAL NO. 16CRB-2559
           Plaintiff-Appellant,                    :
                                                          O P I N I O N.
     vs.                                           :

   BOBBY BURNER,                                   :

       Defendant-Appellee.                         :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 13, 2020


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jon Vogt,
Appellate Director, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant
Public Defender, for Defendant-Appellee.
                         OHIO FIRST DISTRICT COURT OF APPEALS



BERGERON, Judge.


       {¶1}   In 2018, defendant-appellee Bobby Burner sought to collaterally attack his

2016 conviction for sexual imposition, positing that he lacked the requisite competency at

the time of his trial.     Because this case originated in municipal court, the statute for

postconviction relief (R.C. 2953.21) does not apply, and Mr. Burner instead turned to Civ.R.

60(B) through the vehicle of Crim.R. 57(B). To support this application, he presented an

expert, but she confessed that she could not render a competency opinion concerning his

status in 2016. The trial court nevertheless granted relief under Civ.R. 60(B), erasing Mr.

Burner’s conviction, which prompted the state to appeal. Because the court failed to apply

the Civ.R. 60(B) standard, and Mr. Burner cannot satisfy it in any event, we are compelled

to reverse its judgment.


                                              I.
       {¶2}   In July 2016, after a trial, the municipal court found Mr. Burner guilty of

sexual imposition, requiring him to register annually for 15 years as a Tier I sex offender.

Notably, Mr. Burner never appealed this conviction. Roughly a year and a half later, in

January 2018, Mr. Burner ran into trouble with the law once again, this time charged with

criminal damaging, violating a protection order, and failure to verify his current address (a

Tier I registration requirement). During these 2018 proceedings, Mr. Burner’s competency

emerged as an area of concern, leading to Dr. Carla Dreyer’s evaluation of his competency to

stand trial. After meeting with Mr. Burner twice and conducting various tests, Dr. Dreyer

opined that he was incompetent, “due to his below average intellect and probable

intellectual disability,” but restorable. Another expert reached a similar result, with Dr.


                                                  2
                       OHIO FIRST DISTRICT COURT OF APPEALS


Stuart Bassman also deeming him incompetent to stand trial. In February 2018, based

upon these findings, the court found Mr. Burner incompetent and accordingly ordered him

to undergo treatment at the Southwest Ohio Developmental Center.

       {¶3}   Armed with these diagnoses, in May 2018, Mr. Burner filed a petition for

postconviction relief and a concomitant request for an evidentiary hearing, challenging the

effectiveness of his 2016 trial counsel for the failure to raise his competency and asserting a

due process violation. After reviewing Ohio caselaw that provides that municipal courts lack

authority under the postconviction statutes, Mr. Burner later amended and reframed his

petition, requesting the court to instead vacate his conviction pursuant to Crim.R. 57(B) and

Civ.R. 60(B)—still under ineffective assistance and due process grounds. See State v. Smith,

2016-Ohio-3521, 68 N.E.3d 114, ¶ 18 (1st Dist.), citing State v. Cowan, 101 Ohio St.3d 372,

2004-Ohio-1583, 805 N.E.2d 1085, ¶ 10 (“The postconviction statutes require that a

postconviction petition be filed with the court that sentenced the petitioner and confer

jurisdiction over a postconviction petition only upon a common pleas court.”); State v.

Black, 1st Dist. Hamilton No. C-070546, 2008-Ohio-3790, ¶ 8 (“[Defendant] was sentenced

by the municipal court. Therefore, the postconviction statutes did not afford him a means

for securing relief from his conviction.”). Ultimately, the municipal court found the motion

warranted an evidentiary hearing, postponing a ruling on the merits until after the

presentation of evidence. In the meantime, the court ordered an expert to evaluate Mr.

Burner’s competency at the time of the 2016 trial.

       {¶4}   The evidentiary hearing commenced in August 2018, with Mr. Burner offering

testimony from his former probation officer, Dan Heithaus, and Dr. Dreyer in support of his

application. Officer Heithaus testified about his interactions with Mr. Burner in 2016,

                                                  3
                       OHIO FIRST DISTRICT COURT OF APPEALS


specifically noting Mr. Burner’s trouble understanding his registration requirements as a

sex offender and an incident where he provided an incorrect home address. The focal point

of the hearing, however, was Dr. Dreyer, who previously opined on Mr. Burner’s

competency during the 2018 proceedings. But when confronted with the 2016 timeframe,

she proved unable to render an opinion, candidly acknowledging that she was “unable to

provide an opinion, to a reasonable degree of psychological certainty” as to Mr. Burner’s

competency at that time. Clarifying her reluctance to proffer an expert opinion, Dr. Dreyer

emphasized that Mr. Burner rarely spoke during the 2016 proceedings, creating limited

evidence as to his competency in 2016, and that his substance abuse between the two

proceedings muddied the waters, generating uncertainty as to whether his measured

intellect in 2018 existed to the same extent in 2016. As best we can tell from the record, Dr.

Dreyer did not have the opportunity to discuss these issues with Mr. Burner’s 2016 attorney,

who might have been able to shed light on his condition at that time.

       {¶5}   In response to this evidence, the state poked both procedural and substantive

holes in the defense’s case, maintaining that Mr. Burner failed to file his motion within a

reasonable time, as required under Civ.R. 60(B), and failed to establish his ineffective

assistance of counsel and due process claims. The state also seized upon Dr. Dreyer’s

inability to render an opinion as a testament to Mr. Burner’s failure to meet his burden.

       {¶6}   Ultimately, the municipal court found Mr. Burner incompetent to stand trial

during his 2016 proceedings, and, without engaging in any Civ.R. 60(B) analysis, vacated

his sexual imposition conviction.      The state now appeals this entry, raising three

assignments of error. In its first and second assignments of error, the state asserts that the

court erred when it failed to apply res judicata to Mr. Burner’s motion and when it

                                                  4
                       OHIO FIRST DISTRICT COURT OF APPEALS


conducted a hearing on his competency. As to its third assignment, the state alleges the

court abused its discretion in granting Mr. Burner’s motion pursuant to Crim.R. 57 and

Civ.R. 60.


                                             II.
       {¶7}   We begin with the state’s third assignment of error since we find it dispositive

of this appeal. In its third assignment, the state (in part) asserts that the court erred in

granting Mr. Burner’s motion to vacate his conviction because he did not satisfy the

necessary elements under Civ.R. 60(B). But before we dive in, we pause to note the unusual

nature of this case—vacating a conviction through the tools of Crim.R. 57(B) and Civ.R.

60(B). The postconvictions statutes, as mentioned above, do not confer jurisdiction over

postconviction petitions upon municipal courts, but only upon common pleas courts. See

Cowan, 101 Ohio St.3d 372, 2004-Ohio-1583, 805 N.E.2d 1085, at ¶ 20 (“Accordingly, we

hold that a municipal court is without jurisdiction to review a petition for post-conviction

relief filed pursuant to R.C. 2953.21.”); State v. Zupancic, 9th Dist. Wayne No. 12CA0065,

2013-Ohio-3072, ¶ 5 (“Because [defendant’s] conviction arises from municipal court

proceedings, however, postconviction relief is not available to her.”). Because this leaves

offenders convicted in municipal court without a statutory procedure to seek relief from

their convictions based on evidence outside the record, Ohio courts invoke Crim.R. 57 and

Civ.R. 60 to fashion a comparable remedy. See Smith, 2016-Ohio-3521, 68 N.E.3d 114, at ¶

19 (“[B]ecause the criminal rules provide no procedure for an offender convicted in

municipal court to seek relief from his conviction based on evidence outside the record,

Crim.R. 57(B) permits the offender to seek relief under Civ.R. 60(B)(5).”).




                                                  5
                           OHIO FIRST DISTRICT COURT OF APPEALS


        {¶8}    Crim.R. 57(B) provides that “[i]f no procedure is specifically prescribed by

rule, the court may proceed in any lawful manner not inconsistent with these rules of

criminal procedure, and shall look to the rules of civil procedure and to the applicable law if

no rule of criminal procedure exists.” With our gaze shifted to the rules of civil procedure,

Ohio courts recognize that Civ.R. 60(B) affords defendants convicted by a municipal court

an opportunity to seek relief from their convictions. See Miller v. Walton, 163 Ohio App.3d

703, 2005-Ohio-4855, 840 N.E.2d 222, ¶ 17 (1st Dist.) (“It follows that Civ.R. 60(B) may

afford a criminal defendant relief from a judgment of conviction.”); State v. Denihan, 11th

Dist. Ashtabula No. 2016-A-0003, 2016-Ohio-7443, ¶ 19 (“Pursuant to Civ.R. 60(B),

municipal courts may entertain motions to vacate their own judgments in criminal cases.”).

After prompting from the trial court, Mr. Burner invoked Crim.R. 57(B) and Civ.R. 60(B),

consistent with this authority. As a result, we must review Mr. Burner’s motion to vacate his

conviction through a Civ.R. 60(B) lens,1 and accordingly apply an abuse of discretion

standard to the court’s decision. See State v. Lehrfeld, 1st Dist. Hamilton No. C-030390,

2004-Ohio-2277, ¶ 6 (“In the proceedings below, [defendant] unambiguously invoked

Civ.R. 60(B) in seeking relief from the prison sentence imposed for his community-control

violation. Therefore, [defendant’s] motion may not be recast as, or reviewed under the

standards applicable to, a postconviction petition.”); Schaefer v. Mazii, 2019-Ohio-3808,




1We pause to note that the Ohio Supreme Court in State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545,
882 N.E.2d 431, held that a trial court may recast a motion for relief from judgment as a postconviction
petition even when the defendant presented the motion unambiguously as a Civ.R. 60(B) motion. In
doing so, the court noted that “it is not necessary to look to the Civil Rules or other applicable law for
guidance in the way Crim.R. 57(B) intends, because a procedure ‘specifically prescribed by rule’ exists, i.e.,
Crim.R. 35.” Id. at ¶ 12. However, we do not have such a situation here. No criminal rule exists to address
Mr. Burner’s relief from his conviction entered by the municipal court, and therefore the Civ.R. 60(B)
principles guide our analysis.

                                                          6
                        OHIO FIRST DISTRICT COURT OF APPEALS


__ N.E.3d __, ¶ 9 (1st Dist.) (applying abuse of discretion to the court’s decision to grant a

Civ.R. 60(B) motion).

       {¶9}   To prevail on a motion pursuant to Civ.R. 60(B), Mr. Burner must

demonstrate that he (1) possesses a meritorious claim or defense to present if relief is

granted, (2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through

(5), and (3) submitted the motion within a reasonable time, construed as not more than a

year removed from judgment when pursuing relief under Civ.R. 60(B)(1), (2), or (3). See

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),

paragraph two of the syllabus. Mr. Burner bears the burden of proving his entitlement to

relief pursuant to Civ.R. 60(B), requiring sufficient “ ‘factual material which on its face

demonstrates the timeliness of the motion, reasons why the motion should be granted and

that he has a [claim].’ ” See State v. McComb, 2d Dist. Montgomery No. 26481, 2015-Ohio-

2556, ¶ 28, quoting Adomeit v. Baltimore, 39 Ohio App.2d 97, 103, 316 N.E.2d 469 (8th

Dist.1974) (applying Civ.R. 60(B) standards to defendant’s motion requesting the municipal

court vacate his conviction). Notably, because he must satisfy each of these three GTE

elements independently, a failure to fulfill one element proves fatal to the motion to vacate.

See Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994), citing GTE at 151

(“These requirements are independent and in the conjunctive; thus the test is not fulfilled if

any one of the requirements is not met.”). The trial court never evaluated any of these three

criteria (contrary to the concurring opinion’s suggestion), and although we must accord

deference to its decision, it must provide us some basis to understand how it exercised its

discretion.




                                                  7
                       OHIO FIRST DISTRICT COURT OF APPEALS


       {¶10} Turning to the first prong, Mr. Burner proposed two related claims below,

painting his trial counsel in 2016 as ineffective by failing to raise the competency issue, and

portraying this as a due process violation as well. But the evidentiary hearing glossed over

these points, with Mr. Burner jumping straight into the competency analysis. In order to

establish ineffective assistance of counsel, Mr. Burner needed to show that his trial counsel’s

performance was both deficient and prejudicial. See Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). At no point during the hearing did Mr.

Burner’s previous trial counsel testify, nor did he tender any evidence showing that counsel

should have appreciated a competency problem at that time. See State v. Lampley, 12th

Dist. Butler No. CA2011-03-046, 2011-Ohio-6349, ¶ 22 (rejecting ineffective assistance

claim based on competency where nowhere in the record did evidence reveal difficulty in

communication between defendant and counsel, and, in fact, counsel told the trial court

that, based upon his conversations with defendant, “he believed [defendant] was lucid and

competent to stand trial.”). Nor does it appear that Dr. Dreyer interviewed Mr. Burner’s

prior trial counsel in her competency review.

       {¶11} The failure to tie any deficiency to the ineffective assistance standard assumes

more importance in light of Mr. Burner’s lack of evidence of his incompetence in 2016.

Without any expert conclusion in this regard, he points to his practice of acquiescence—a

proclivity for certain individuals with intellectual disabilities to agree with whatever is said

in order to please those around them. To be sure, his responses to the court’s queries in

2016 are affirmative and curt, but not noticeably different from how other criminal

defendants respond to similar questioning. An expert or someone involved in the 2016

proceedings would need to connect those dots to remove this from the realm of speculation.

                                                  8
                       OHIO FIRST DISTRICT COURT OF APPEALS


Similarly, Mr. Burner maintains that his statistically similar IQ test scores between 2005

(when in high school) and 2018, his failure to understand his sex offender registration

requirements, and the incident where he provided his probation officer with an incorrect

street address all demonstrate his incompetency in 2016. These points similarly seem to fall

short of establishing the legal standard for incompetency: because of the defendant’s mental

condition, he or she is “incapable of understanding the nature and objective of the

proceedings against the defendant or of assisting in the defendant’s defense[.]”       R.C.

2945.37(G). Yes, he exhibited some signs of confusion, but this, standing alone, generally

will not suffice to establish incompetency. See State v. Jones, 1st Dist. Hamilton No. C-

050112, 2006-Ohio-2339, ¶ 14 (rejecting argument that defendant’s “confusion” showed

incompetence: “[defendant] may have been confused as to how he violated his community

control, but he was not incompetent.”).

       {¶12} Although we harbor doubts about the first step in the Civ.R. 60(B) analysis,

we ultimately need not answer whether Mr. Burner satisfied that prong in light of our

disposition regarding the timeliness requirement. The concurrence indicates that we are

grasping onto this issue sua sponte, but the state challenged timeliness from the opening

bell of this motion.

       {¶13} Mr. Burner fastened his ineffective assistance and due process claims to

Civ.R. 60(B)(5), which allows relief from “the unjust operation of a judgment,” but is only

available in “extraordinary circumstances.” Melton v. Melton, 1st Dist. Hamilton No. C-

130123, 2013-Ohio-4790, ¶ 12. Notably, Civ.R. 60(B)(5) is a “catch-all” provision, only

providing refuge when the other expressly enumerated grounds do not apply. Caruso-

Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph one of the

                                                9
                       OHIO FIRST DISTRICT COURT OF APPEALS


syllabus (“Civ.R. 60(B)(5) is intended as a catch-all provision reflecting the inherent power

of a court to relieve a person from the unjust operation of a judgment, but it is not to be

used as a substitute for any of the other more specific provisions of Civ.R. 60(B).”). While

Civ.R. 60(B)(5) does not prescribe an exact timeline, it necessitates filing within a

“reasonable time.” Civ.R. 60(B); see Zwahlen v. Brown, 1st Dist. Hamilton No. C-070263,

2008-Ohio-151, ¶ 12 (“A ‘reasonable time’ for mistake, newly discovered evidence, and fraud

is not more than one year, but the rule does not specify what constitutes a ‘reasonable time’

for seeking relief under Civ.R. 60(B)(5).”). Perhaps needless to say, parties “cannot use the

‘catch-all’ provision of Civ.R. 60(B)(5) as a substitute for the more specific grounds set forth

in Civ.R. 60(B)(1), (2) or (3), to avoid the one-year filing requirement.” Osting v. Osting,

6th Dist. Ottawa No. OT-07-033, 2009-Ohio-2936, ¶ 13; see Hall v. Hall, 2d Dist. Greene

No. 2017-CA-12, 2017-Ohio-7932, ¶ 47, quoting Jackson v. Hendrickson, 2d Dist.

Montgomery No. 21921, 2008-Ohio-491, ¶ 51 (“Consequently, ‘a party cannot use Civ.R.

60(B)(5) to circumvent the one-year limitation by duplicating grounds that are subject to

the limitation.’ ”).

        {¶14} That admonition rings true here, as we view Mr. Burner’s Civ.R. 60(B)(5)

arguments as indistinguishable from those that would be presented under Civ.R. 60(B)(2),

which provides relief from judgment based upon “newly discovered evidence which in the

exercise of due diligence could not have been discovered in time for trial.” State v. Noling,

11th Dist. Portage No. 2007-P-0034, 2008-Ohio-2394, ¶ 108. Despite citing Civ.R. 60(B)(5)

in his motion, Mr. Burner essentially requested below that the court grant relief based upon

newly discovered evidence—specifically, Dr. Dreyer’s and Officer Heithaus’s testimony—

which he asserts demonstrates his incompetency in 2016, rendering his counsel ineffective

                                                  10
                       OHIO FIRST DISTRICT COURT OF APPEALS


and his due process rights violated. He admits as much in his brief: “[T]he amended

postconviction motion was based upon new evidence in the form of Dr. Dreyer’s testimony

and [her] report that was cogent, outside the record, and demonstrated a substantive

ground for relief.” (Emphasis added.) But he filed his claim for relief nearly two years after

the underlying judgment.       That time period also almost doubles that allotted for

postconviction petitions in cases arising from common pleas courts. See R.C. 2953.21(A)(2).

       {¶15} Indeed, the criminal cases featured by the concurrence reinforce our

conclusion. In State v. Dodson, 10th Dist. Franklin No. 03AP-306, 2004-Ohio-581, the

court found a one-year delay (i.e., half of the time period at issue here) unreasonable. In

State v. Jones, 11th Dist. Ashtabula No. 2001-A-0072, 2002-Ohio-6914, the court never

considered the timeliness aspect of the Civ.R. 60(B) analysis, but instead found the claim

barred based on the lack of substantiation that the “new” evidence could not have been

marshalled at the time of trial. Id. at ¶ 20-24. That case, like this one, contained no

evidence that trial counsel actually dropped the ball, id. at ¶ 23—and underscoring that

point here, Mr. Burner never fleshed out the ineffective assistance claim below or on appeal.

He instead focused solely on new evidence of competency rather than on any ineffective

assistance claim. Accordingly, on these facts and given the nature of the claim for relief, we

believe that Mr. Burner’s almost two-year delay in seeking postjudgment relief was

unreasonable.

       {¶16} Although the trial court did not conduct a Civ.R. 60(B) analysis, if it had, it

would have abused its discretion in finding Mr. Burner’s motion timely on the state of this

record. That is enough to warrant reversal. See McComb, 2d Dist. Montgomery No. 26481,

2015-Ohio-2556, at ¶ 34 (“However, [defendant] failed to meet two of the other necessary

                                                 11
                        OHIO FIRST DISTRICT COURT OF APPEALS


requirements for Civ.R. 60(B) relief. One such failure is fatal[.]”). Accordingly, we sustain

the state’s third assignment of error.

                                                 III.

       {¶17} For the foregoing reasons, we hold that the court erred when it granted Mr.

Burner’s motion to vacate his sexual imposition conviction pursuant to Civ.R. 60(B), and

accordingly we sustain the state’s third assignment of error. Our disposition of the state’s

third assignment of error renders its first and second assignments of error moot. We,

therefore, reverse the trial court’s judgment granting Mr. Burner’s motion pursuant to

Crim.R. 57(B) and Civ.R. 60(B) and remand the cause for the court to enter judgment

denying relief.

                                                    Judgment reversed and cause remanded.

MOCK, P. J., concurs.
ZAYAS, J., concurs in judgment only.

ZAYAS, J., concurring in judgment only.

       {¶18} Mr. Burner asserted that his trial counsel was ineffective for failing to request

a competency hearing after he was found incompetent and unrestorable. As Dr. Dreyer

explained, his cognitive abilities were so deficient, “if we took a hundred people and gave

them a test, you’re going to have him scoring below the – the first percentile, meaning that

he is the lowest. There will be 99 people ahead of him with higher scores.” With an IQ

below the 1st percentile, first documented in 2005, Mr. Burner questioned his former

counsel’s efforts in representing him. Instead of addressing this issue, the majority exceeds

this court’s authority by going beyond the legal issues properly before it and misconstrues

the appellee’s brief to achieve its desired result. Accordingly, I concur in judgment only.



                                                  12
                             OHIO FIRST DISTRICT COURT OF APPEALS


                                     Newly Discovered Evidence

          {¶19} During the proceedings, all parties litigated the motion under Civ.R. 60(B)(5),

yet, the majority now claims that the motion was actually based on newly discovered

evidence under Civ.R. 60(B)(2).                 But, there are two glaring problems with this

determination. First, the state did not raise this issue below, and we will “not consider any

error which counsel for a party complaining of the trial court’s judgment could have called

but did not call to the trial court’s attention at a time when such error could have been

avoided or corrected by the trial court.” See State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, ¶ 21. Equally concerning, the state did not raise this issue on

appeal, nor did the parties brief the issue. The words “new evidence” or “newly discovered

evidence” do not appear in the transcript of the arguments or in the state’s brief.2 The state

did not argue that the motion should have been recast as a Civ.R. 60(B)(2) motion and

overruled because it was not filed within a year.

          {¶20} Second, the majority latches onto one sentence in Mr. Burner’s brief, takes it

out of context, and claims that Mr. Burner admits that the motion was “based upon new

evidence in the form of Dr. Dreyer’s testimony and [her] report that was cogent, outside the

record, and demonstrated substantive grounds for relief.” However, that sentence was in

response to the state’s argument that res judicata barred the motion.

          {¶21} Mr. Burner correctly argued that res judicata did not apply because the

motion presented evidence outside of the trial court record, and therefore, could not have

been raised on direct appeal. See State v. Jones, 11th Dist. Ashtabula No. 2001-A-0072,

2002-Ohio-6914, ¶ 17 (explaining that res judicata does not apply when the defendant

2   The state did not file a written response to Mr. Burner’s motion.

                                                           13
                           OHIO FIRST DISTRICT COURT OF APPEALS


presents relevant evidence outside of the record).3 Yet, the majority misconstrues the res

judicata argument into an admission that the motion itself was based on newly discovered

evidence.

        {¶22} The basis for Mr. Burner’s motion was Civ.R. 60(B)(5). Mr. Burner asserted

that his trial counsel was ineffective for failing to ask for a competency evaluation at the

time of trial because an evaluation would have shown that he was incompetent, and he

would not have been tried or convicted. Mr. Burner asserted that he did not discover his

counsel’s deficient performance due to his own intellectual limitations. Mr. Burner further

argued that had his counsel been diligent, his incompetency would have been established at

the time of trial.

        {¶23} “[I]n order to succeed on a Civ.R. 60(B)(2) motion, the moving party must

show not only that the evidence was ‘newly discovered’ and that the movant exercised ‘due

diligence,’ but the movant must also demonstrate to the trial court how this evidence is

‘material,’ and that it would probably have produced ‘a different result.’ ” First Fin. Servs.,

Inc. v. Cross Tabernacle Deliverance Church, Inc., 10th Dist. Franklin No. 06AP-404,

2007-Ohio-4274, ¶ 59, quoting Holden v. Ohio Bur. of Motor Vehicles, 67 Ohio App.3d 531,

540, 587 N.E.2d 880 (9th Dist.1990). To qualify as newly discovered evidence, the evidence

must not have been discoverable by due diligence within the time limits set forth for a

motion for a new trial under Civ.R. 59(B). See Civ.R. 60(B)(2); Carnes v. Carnes, 2015-

Ohio-2925, 38 N.E.3d 1214, ¶ 19 (1st Dist.).




3 I do not address the first assignment of error because the state failed to raise it below and has waived the
argument on appeal. See Nationstar Mtg., L.L.C. v. Young, 9th Dist. Summit No. 27499, 2015-Ohio-
3868, ¶ 5. I do not address the second assignment of error because the state did not object to the hearing,
and instead only argued the merits. See id.

                                                         14
                       OHIO FIRST DISTRICT COURT OF APPEALS


       {¶24} Here, Mr. Burner’s competency could have been discovered prior to trial with

reasonable diligence. See Cuyahoga Support Enforcement Agency v. Guthrie, 84 Ohio

St.3d 437, 442, 705 N.E.2d 318 (1999) (explaining that Civ.R. 60(B)(2) is not applicable to a

paternity test result when the testing was available at the time of the initial paternity

determination. “Consequently, it does not meet the definition of newly discovered evidence

because it could have been discovered by due diligence in time to move for a new trial.”).

Had Mr. Burner’s trial counsel requested a competency evaluation in 2016, his

incompetency would have been established at that time.

       {¶25} This is precisely why Mr. Burner filed the motion pursuant to Civ.R. 60(B)(5).

Motions alleging ineffective assistance of counsel in a criminal case are properly raised

under Civ.R. 60(B)(5). See State v. Jones, 11th Dist. Ashtabula No. 2001-A-0072, 2002-

Ohio-6914, ¶ 13 (concluding that “appellant could properly seek relief from judgment under

Civ.R. 60(B)(5) for ineffective assistance of counsel.”); State v. Dodson, 10th Dist. Franklin

No. 03AP-306, 2004-Ohio-581, ¶ 10 (finding that “[f]or purposes of Civ.R. 60(B),

appellant’s ineffective assistance of counsel claims would fall under the ‘any other reason

justifying relief from judgment’ grounds set forth in Civ.R. 60(B)(5).’ ”). Thus, the trial

court properly analyzed the petition under Civ.R. 60(B)(5).

                                    Standard of Review

       {¶26} The majority acknowledges that we review the court’s decision for an abuse of

discretion, but inexplicably, and without any legal authority, concludes that “[t]he trial court

never evaluated any of the [60(B)] criteria” and “it must provide us some basis to

understand how it exercised its discretion.” If the record supports the trial court’s decision,

it is not an abuse of discretion. Lottridge v. Gahanna-Creekside Invests., L.L.C., 2015-

                                                  15
                       OHIO FIRST DISTRICT COURT OF APPEALS


Ohio-2168, 36 N.E.3d 744, ¶ 31 (10th Dist.). Moreover, findings of fact and conclusions of

law are not required in Civ.R. 60(B) decisions. See Civ.R. 52; Briggs v. Deters, 1st Dist.

Hamilton No. C-961068, 1997 WL 346039, *2 (June 25, 1997).

       {¶27} When applying the abuse-of-discretion standard, this court may not

substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio

St.3d 619, 621, 614 N.E.2d 748 (1993). The phrase “ ‘abuse of discretion’ * * * implies that

the trial court’s attitude [was] unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion may be

found when the trial court “applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio

App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).

                                The Ruling on the Merits

       {¶28} In order to prevail on a motion brought pursuant to Civ.R. 60(B), “the movant

must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5); and (3) the motion is made within a reasonable time, and, where the grounds of

relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or

proceedings was entered or taken.” GTE Automatic Electric Inc. v. ARC Industries Inc., 47

Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.

       1. Timeliness

       {¶29} Although motions for relief under Civ.R. 60(B)(5) are not governed by a fixed

time limit, they must still be brought within a reasonable time after entry of judgment.

Civ.R. 60(B). Whether a Civ.R. 60(B) motion is filed within a reasonable time depends on

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the facts and circumstances of the particular case. Herlily Moving and Storage, Inc. v.

Nichison, 10th Dist. Franklin No. 09AP-831, 2010-Ohio-6525, ¶ 14, citing Scotland Yard

Condominium Assn. v. Spencer, 10th Dist. Franklin No. 05AP-1046, 2007-Ohio-1239, ¶ 33.

       {¶30} Here, Mr. Burner filed his motion 21 months after his conviction, and one

month after the court found him incompetent and unrestorable. He further argued that his

own incompetence prohibited him from discovering his trial counsel’s ineffectiveness and

from filing the motion sooner.

       {¶31} The majority is correct that the state challenged the timeliness, however, the

record is clear that the prosecutor specifically argued “under the Civil Rule 60(B)(5), I

believe that’s where we’re at, these motions have to be filed within a reasonable time for

those sorts of motions.” The trial court rejected its argument and found that the motion was

timely, especially in light of the fact that Mr. Burner was still required to comply with the

registration component of his sentence. Based on these facts and circumstances, I cannot

conclude that the trial court abused its discretion in finding the motion was filed within a

reasonable time.

       {¶32} The majority concludes that the 21-month delay was unreasonable, but it fails

to analyze the specific facts and circumstances of this case in reaching its decision. Instead,

it relies on Dodson, a case where the “[a]ppellant failed to provide any explanation for this

delay,” State v. Dodson, 10th Dist. Franklin No. 03AP-306, 2004-Ohio-581, ¶ 11, and Jones,

a case where timeliness was not discussed because the petition was barred by res judicata,

State v. Jones, 11th Dist. Ashtabula No. 2001-A-0072, 2002-Ohio-6914, ¶ 23, 25, 27.

Neither case sheds any light on whether Mr. Burner’s motion was timely.




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       2. Competency

       {¶33} To support his claim, Mr. Burner submitted two court clinic reports for the

trial court’s review. Both reports noted that Mr. Burner presented as “an individual of

substantially below average intellect.” The first report was prompted by his felony and

misdemeanor attorneys who were independently concerned about his competency after

speaking with him in February 2018. Dr. Dreyer initially believed he was restorable, and he

was placed in a residential treatment center. Ultimately, she concluded that Mr. Burner was

not capable of comprehending the nature of the proceedings or instructions, assisting

counsel to prepare a defense, or evaluating legal evidence “due to his below average intellect

and probable intellectual disability.”

       {¶34} Dr. Dreyer’s second report was an attempt to discern whether he was

incompetent at the time of his trial in July 2016. She noted that Mr. Burner presented as

low functioning in 2016 while on probation. According to her report, Mr. Burner had been

referred to the Court Clinic in 2016 for a probation consultation. Dr. Dreyer determined

that his verbal reasoning abilities, his ability to process novel information, his ability to use

information, attend, and concentrate, and his full scale IQ were all below the 1st percentile

and were in the “Extremely Low” range. These scores were consistent with his test scores in

2005. Dr. Dreyer further opined that the “available collateral information suggests that the

defendant’s current intellect is similar to that of his 2016 legal proceedings” and “the

defendant’s measured intellect has not likely changed significantly since 2016” and “his

current presentation raises concerns about his ability to [comprehend instructions and

evaluate legal advice] in 2016.”

       {¶35} At the hearing, she testified that Mr. Burner was incapable of understanding

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the nature of the proceedings because his cognitive limitations prevented him from

understanding. Although she could not determine with certainty whether Mr. Burner was

incompetent in 2016, she explained that “he was substantially below average intellect, had

cognitive difficulties that were apparent in the evaluation, but also historically noted, and

they were consistent across time.”       She further opined that Mr. Burner’s ability to

comprehend abstract legal concepts was very poor due to his intellectual limitations which

were reflected in his 2005 and 2018 scores in the 1st percentile on the “Working-Memory

Index.” Although alcohol and marijuana abuse was one reason that his functioning could

potentially have been different in 2016, she stressed that this scenario was only a possibility,

and that intellectual disability is less likely to change significantly over time absent a head

injury. Finally, Dr. Dreyer explained that Burner’s test scores were consistently in the

extremely low range, and the lower a person’s intellectual functioning, the higher the

probability the person will remain incompetent.

       {¶36} In addition to testing Mr. Burner, Dr. Dreyer read the transcripts of the 2016

proceedings. She pointed out that Mr. Burner’s attorney primarily spoke on behalf of Mr.

Burner. The few times Mr. Burner spoke, he frequently acquiesced and responded to

questions with, “Yes, sir.” She explained that substantial research shows that individuals

with intellectual disabilities frequently acquiesce and agree when they do not understand

something because they do not want to draw attention to their intellectual limitations. Dr.

Dreyer further testified that during the sentencing, Mr. Burner’s only other response to the

trial court was inappropriate, did not make sense, and it appeared that he did not

understand what the court had said to him.

       {¶37} At the sentencing hearing, Mr. Burner’s trial counsel admitted that he had not

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informed Mr. Burner about the registration requirements or attempted to explain the

requirements to him. At that point, the trial court read the registration requirements to Mr.

Burner. When asked if he understood, Mr. Burner replied, “Sir, yes, sir.”

       {¶38} Five days later, Burner reported to his probation officer, Mr. Heithaus. Based

on his initial interaction with Mr. Burner, it was apparent to him that Mr. Burner was very

limited intellectually and did not understand the registration requirements. Although Mr.

Burner responded “yes” to Mr. Heithaus’s explanation of the registration instructions, Mr.

Heithaus did not believe Mr. Burner actually understood his requirements or where he

needed to report. To make sure that Mr. Burner registered properly, Mr. Heithaus walked

him to the sheriff’s department to register. Once they arrived, Mr. Burner incorrectly

recited his address, giving the wrong house number and street name. However, another

officer who was present knew the correct address, so Mr. Heithaus pulled up the street on

Google Maps so that Mr. Burner could point to his home.

       {¶39} Throughout Mr. Heithaus’s interactions with him, Mr. Burner responded to

all of his questions with, “Yes, sir. Yes, sir.” When Mr. Burner was served with a protection

order, he did not understand what it meant or what was going on, so Mr. Heithaus had to

explain it to him.    Mr. Heithaus testified that Mr. Burner struggled to understand

instructions and documents. Instead of expressing his lack of understanding, Mr. Burner

merely responded, “Yes, sir.”    Mr. Heithaus testified that Burner presented as a low-

functioning person with intellectual disabilities in 2016 and during his time on probation.

       {¶40} Dr. Dreyer established that Mr. Burner’s incompetency was due to his

extremely low intellectual abilities, which had not changed since 2005. Moreover, she

testified that Mr. Burner displayed indicia of incompetency at the 2016 sentencing hearing.

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                       OHIO FIRST DISTRICT COURT OF APPEALS


Throughout his interactions with his probation officer, he exhibited a limited ability to

understand information and instructions. The record further reflects that Mr. Burner’s

intellectual limitations were readily apparent to Mr. Heithaus at the time of his conviction,

and probation referred him to the Court Clinic in 2016 for an evaluation. Unquestionably,

had Mr. Burner been found incompetent at the time, he would not have been tried and

convicted.

       {¶41} Under these circumstances, as the trial court found, Mr. Burner’s

incompetency and inability to comply with his registration requirements would result in

repeated criminal charges and a significant penalty. I cannot conclude that the trial court’s

determination that Mr. Burner was incompetent was arbitrary, unconscionable or

unreasonable because it is supported by the record.

       3. Ineffective Assistance of Counsel

       {¶42} A court will presume that a properly licensed attorney is competent, and the

defendant bears the burden to show ineffective assistance of counsel. State v. Hamblin, 37

Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988). To sustain a claim for ineffective assistance

of counsel, the defendant must demonstrate that counsel’s performance was deficient and

that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶43} Here, Mr. Burner submitted no evidence that his trial counsel knew or should

have known about Mr. Burner’s incompetency. The testimony of Mr. Heithaus established

that Mr. Burner’s limited intelligence was readily apparent to him, but he also testified that

he had experience supervising individuals with low IQ’s. Nothing in this record suggests

how or why his counsel would have been alerted to this issue. For example, none of his

                                                 21
                        OHIO FIRST DISTRICT COURT OF APPEALS


current or former attorneys submitted affidavits or testified regarding their interactions,

impressions or observations regarding Mr. Burner’s extremely low IQ. Thus, Mr. Heithaus’s

testimony was insufficient to show that Mr. Burner’s counsel should also have realized Mr.

Burner’s limitations.

       {¶44} The record reflects that the trial court believed that the former attorney could

not be questioned because Mr. Burner was incapable of waiving the attorney-client

privilege. However, an ineffective assistance of counsel claim waives the attorney-client

privilege. See State v. Montgomery, 2013-Ohio-4193, 997 N.E. 2d 579, ¶ 29 (8th Dist.).

Absent any evidence in the record that Mr. Burner’s former counsel knew or should have

known about Mr. Burner’s incompetency, the trial court abused its discretion in granting

the motion.

                                       Conclusion

       {¶45} Accordingly, I would sustain the third assignment of error, reverse the

judgment of the trial court, and remand the cause for further proceedings.




Please note:
       The court has recorded its own entry this date.




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