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State v. Phillips

Court of Appeals of Ohio, Tenth District

July 18, 2019

State of Ohio, Plaintiff-Appellee,
v.
Earnest L. Phillips, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 17CR-5223)

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.

          Yeura R. Venters, Public Defender, and Robert D. Essex, for appellant.

         Argued:

          Barbara A. Farnbacher.

          Robert D. Essex.

          DECISION

          DORRIAN, J.

         {¶ 1} Defendant-appellant, Earnest L. Phillips, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to a jury verdict of guilty on one count of burglary. Because we conclude the trial court did not err by terminating Phillips's self-representation or by continuing the trial in his absence, we affirm.

         I. Facts and Procedural History

         {¶ 2} Phillips was indicted on one count of burglary on September 25, 2017. The charge arose from an incident in which Columbus police officers observed Phillips enter and walk around inside a fraternity house near The Ohio State University campus. The house manager for the fraternity would later testify that Phillips did not live in the house and was not a guest of any of the residents. Attorney Michael Siewert was appointed to represent Phillips. A trial on the burglary indictment and two other criminal cases was scheduled for October 11, 2017, but on that date Phillips advised the court he was unhappy with Attorney Siewert. The court concluded Phillips's complaints about Siewert were not well-founded. The trial court commenced jury selection the following day. Before voir dire was completed on October 12, 2017, Phillips advised the court he wished to represent himself. The court granted Phillips's request and offered to appoint Attorney Siewert as standby counsel, which Phillips declined. Later that same day, Phillips reported to the court that he was experiencing medical issues. The Columbus Division of Fire emergency squad was summoned and concluded Phillips was not in genuine distress. However, Phillips persisted in telling the court he could not proceed with trial. The court then appointed Attorney Jeffrey Basnett to represent Phillips and scheduled a pretrial conference for October 25, 2017. In the entry appointing Attorney Basnett to serve as Phillips's counsel, the trial court advised that "[s]hould Mr. Phillips decline to work with or be represented by attorney Basnett, the court will allow Phillips to self-represent on his cases, but under the circumstances the court deems it prudent to first offer Mr. Phillips attorney Basnett's services." (Oct. 13, 2017 Journal Entry at 1-2.)

         {¶ 3} Immediately before the pretrial conference on October 25, 2017, Phillips advised Attorney Basnett he wished to represent himself. Attorney Basnett notified the court of this at the beginning of the conference. Following extensive discussion with the court, including an assertion by Phillips that he was experiencing mental health issues, Phillips agreed to continue to work with Attorney Basnett in preparing his case for trial. The case was set for trial on November 6, 2017.

         {¶ 4} When Phillips and Attorney Basnett appeared before the court again on November 6, 2017, Attorney Basnett advised the court that Phillips had indicated prior to the hearing that he would represent himself and asked Attorney Basnett to assist him in getting additional information. Phillips had also told Attorney Basnett he suffered from bipolar disorder and was having problems with his medication. Attorney Basnett further advised the court that Phillips was due for further mental health evaluation by Southeast Mental Health. Attorney Basnett suggested a formal competency evaluation be conducted and indicated that Phillips had previously agreed with that recommendation. When asked whether he wanted a competency evaluation, Phillips responded as follows:

Judge Frye, you got to excuse me, because I have been blinking out and on. I have a change of thought. I'm not further too well, and I will take your advice and keep him as my lawyer. I'm not actually going to be able to represent myself, you know. It's very complicated for me. My mind is not working like it used to, actually.
You know, I'm just asking, actually, for this Southeast to try to evaluate to see what's going on with me. They said it was something in the past that's tricking me off and on, and so on. And that's what I'm asking for.

(Nov. 6, 2017 Tr. at 4.) Following the hearing, the trial court ordered a competency evaluation for Phillips. The competency report was submitted to the court on December 13, 2017. Throughout December 2017, Phillips filed pro se motions for bond hearing, suppression of evidence, dismissal ...


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