[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 : O P I N I O N

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 courtappointed 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