State v. BurnerState v. Burner
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.
{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 (
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.
{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
{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,
{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
{6} Ultimately, the municipal court found Mr. Burner incompetent to stand trial during his 2016 proceedings, and, without engaging in any
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
{9} To prevail on a motion pursuant to
{11} The failure to tie any deficiency to the ineffective assistance standard assumes more impоrtance 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.
{12} Although we harbor doubts about the first step in the
{13} Mr. Burner fastened his ineffective assistance and due process claims to
{14} That admonition rings true here, as we view Mr. Burner‘s
{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 аt 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
{16} Although the trial court did not conduct a
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
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.
{19} During the proceedings, all parties litigated the motion under
{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 [hеr] 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 presents relevant evidence outside of the record).3 Yet, the majority misconstrues the res judicata argument into an admissiоn that the motion itself was based on newly discovered evidence.
{23} “[I]n order to succeed on a
{25} This is precisely why Mr. Burner filed the motion pursuant to
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-Ohio-2168, 36 N.E.3d 744, ¶ 31 (10th Dist.). Moreover, findings of fact and conclusions of
{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
1. Timeliness
{29} Although motions for relief under
{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.
{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 percentilе 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
{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 becаuse 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
{38} Five days later, Burner reported to his probation officer, Mr. Heithaus. Based on his initial interaction with Mr. Burner, it was aрparent 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 heаring.
{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 detеrmination 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
{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.