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State v. Tilley

Court of Appeals of Ohio, Fourth District, Jackson

July 20, 2018

STATE OF OHIO, Plaintiff-Appellee,
NATHAN TILLEY, Defendant-Appellant.

          Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Ohio Assistant Public Defender, Columbus, Ohio, for appellant.

          Justin Lovett, Jackson County Prosecuting Attorney, and Nick Wille, Jackson County Assistant Prosecuting Attorney, Jackson, Ohio, for appellee.



         {¶1} Nathan Tilley ("Tilley") appeals from the judgment of the Jackson County Court of Common Pleas. The trial court had revoked his community control based on his pro se guilty plea to violating it and had sentenced him to serve the underlying 36-month prison sentence and ordered him to pay the costs of the case.

         {¶2} Tilley initially asserts that his conviction and sentence should be reversed because the trial court did not obtain a knowing, intelligent, and voluntary waiver of his right to counsel. The totality of the circumstances in this case include: (1) the trial court failed to explicitly advise Tilley that he had the right to be represented by retained counsel as required by Crim.R. 32.3(B); (2)Tilley did not waive his right to counsel in writing as required by Crim.R. 32.3(D) and 44(C); (3)the trial court did not discuss any possible defenses to the charge of violating community control or circumstances in mitigation of the violation with Tilley before accepting his waiver of counsel; and (4) the trial court did not discuss the dangers and disadvantages of self-representation with Tilley when he advised the court that he was representing himself. Based on these circumstances, the trial court did not obtain a knowing, intelligent, and voluntary waiver. We sustain Tilley's first assignment of error.

         {¶3} Tilley next contends that the trial court erred in assessing certain unauthorized costs related to subpoenas issued in the underlying criminal case, but res judicata precluded him from claiming error in the court's imposition of costs when he did not file a timely appeal or move to modify the original sentencing entry. We overrule Tilley's third assignment of error.[1]

         {¶4} Tilley finally argues that the clerk of courts improperly issued a writ to the Jackson County Sheriff to execute on his property for the unpaid costs. We agree because under the sentencing entries, he was not yet liable to pay the ordered costs; and the final sentencing entry has now been reversed in light of our disposition of his first assignment of error. We sustain Tilley's fourth assignment of error.

         {¶5} Having sustained Tilley's first and fourth assignments of error, we reverse his conviction and sentence as well as the writ of execution for costs that are not yet due and remand for further proceedings consistent with this opinion.

         I. Facts and Procedural Background

         {¶6} In May 2014, the Jackson County Grand Jury returned an indictment charging Tilley with one count of illegal possession or assembly of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), a felony of the third degree. Tilley, who was represented by retained counsel, entered a plea of not guilty to the charge and filed a motion to suppress evidence. The court issued subpoenas for witnesses to appear at the suppression hearing. After the trial court held a hearing, it denied the motion to suppress.

         {¶7} Tilley then pleaded guilty to the charge; and the trial court convicted him. In July 2016, the court sentenced Tilley to five years of community control, with conditions that he consume no alcohol, illegal drugs, or narcotics of any type and that he pay court costs "within the term of his community control." The trial court notified Tilley that violation of his community control would lead to a 36-month prison term and an administrative increase up to an additional one-half of the stated term. In August 2016, the court sent Tilley an itemized bill of $357 for costs incurred in the criminal case. Tilley did not appeal from either his July 2016 sentencing entry or contest the August 2016 itemized bill for costs by filing a motion to waive or modify costs.

         {¶8} In October 2016-three months after Tilley had been sentenced and two months after he had been sent the itemized bill for costs-the State of Ohio ("State") filed a notice that Tilley had violated his community control by consuming Oxycodone. At a hearing in early November 2016, Tilley appeared without counsel. He advised the court that he did not want court-appointed counsel; and he entered a plea of guilty to the charge that he violated his community control. As a result, the court revoked his community control and sentenced him to the previously specified 36-month prison term. In its November 8, 2016 sentencing entry, the trial court reiterated the sentence that it had orally imposed at the hearing, but added an order that Tilley "pay the costs of this action within 60 days from the date of his release from prison." In a writ issued by the clerk of courts that same day, the sheriff was commanded to execute on Tilley's goods, chattels, land, and tenements for $551 in costs allegedly incurred in the case.

         {¶9} Tilley filed a motion for leave to file a delayed appeal in January 2017 with a notice of appeal. After Tilley remedied deficiencies, this Court granted Tilley's motion for leave to file the delayed appeal, which is now before this Court for decision.

         II. Assignments of Error

         {¶10} Tilley assigns the following errors for our review:

I. The trial court erred when it accepted Nathan Tilley's admission of guilt without properly advising Mr. Tilley of his right to retained counsel or obtaining a written waiver of counsel. Crim.R. 22, 32.3, 44; Tr. 96-99.
II. The trial court improperly imposed court costs. State v. Jackson, Slip Opinion No. 2016-Ohio-8127; State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278; R.C. 2947.23.[2]
III. The trial court assessed, and the Clerk of Courts collected, unauthorized court costs. R.C. 311.17; Subpoenas (Nov. 19, 2014; Nov. 21, 2014; Dec. 15, 2014; Dec. 16, 2014; Jan. 27, 2015).
IV. The Clerk of Courts issued improperly, and without authority, an execution against Nathan Tilley's property for the costs of prosecution. R.C. 2949.14; R.C. 2949.15; Execution of Costs in Felony (Nov. 8, 2016); Second Notice to Pay Costs (Jan. 4, 2017); Itemized Bill (Jan. 5, 2017); Final Notice (Aug. 17, 2017); Cost Bill; Tr. 96.

         III. Law and Analysis

         A. Tilley Did Not Knowingly, Intelligently, and Voluntarily Waive his Right to Counsel

         {¶11} "The Sixth Amendment to the United States Constitution provides that criminal defendants shall have the right to the assistance of counsel for their defense." State v. Bristow, 4th Dist. Scioto Nos. 07CA3186 and 07CA3187, 2009-Ohio-523, ¶ 12; see also Article I, Section 10 of the Ohio Constitution. Because a defendant also has the right of self-representation, he may" 'defend himself without counsel when he voluntarily, and knowingly and intelligently elects to do so.'" State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 24, quoting State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the syllabus. "To establish an effective waiver of the right to counsel, the trial court must make sufficient ...

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