[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, O P I N I O N 

 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 

 
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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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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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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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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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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. 
Case No. 4-19-08 

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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