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State v. Overton

Court of Appeals of Ohio, Fifth District

August 5, 2013

STATE OF OHIO Plaintiff - Appellee
v.
DANIEL W. OVERTON Defendant-Appellant

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

For Plaintiff-Appellee: TOM C. ELKIN Morrow County Assistant Prosecutor

For Defendant-Appellant: WILLIAM T. CRAMER

Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

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 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:

(ΒΆ8} "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 ...


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