State v. Burner
| Decision Date | 13 May 2020 |
| Docket Number | APPEAL NO. C-180516 |
| Parties | STATE OF OHIO, Plaintiff-Appellant, v. BOBBY BURNER, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
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 (R.C. 2953.21) does not apply, and Mr. Burner instead turned to Civ.R. 60(B) through the vehicle of Crim.R. 57(B). To support this application, he presented an expert, but she confessed that she could not render a competency opinion concerning his status in 2016. The trial court nevertheless granted relief under Civ.R. 60(B), erasing Mr. Burner's conviction, which prompted the state to appeal. Because the court failed to apply the Civ.R. 60(B) standard, and Mr. Burner cannot satisfy it in any event, we are compelled to reverse its judgment.
{¶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. Stuart Bassman also deeming him incompetent to stand trial. In February 2018, based upon these findings, the court found Mr. Burner incompetent and accordingly ordered him to undergo treatment at the Southwest Ohio Developmental Center.
{¶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 Crim.R. 57(B) and Civ.R. 60(B)—still under ineffective assistance and due process grounds. See State v. Smith, 2016-Ohio-3521, 68 N.E.3d 114, ¶ 18 (1st Dist.), citing State v. Cowan, 101 Ohio St.3d 372, 2004-Ohio-1583, 805 N.E.2d 1085, ¶ 10 (); State v. Black, 1st Dist. Hamilton No. C-070546, 2008-Ohio-3790, ¶ 8 ( ). Ultimately, the municipal court found the motion warranted an evidentiary hearing, postponing a ruling on the merits until after the presentation of evidence. In the meantime, the court ordered an expert to evaluate Mr. Burner's competency at the time of the 2016 trial.
{¶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, specifically noting Mr. Burner's trouble understanding his registration requirements as a sex offender and an incident where he provided an incorrect home address. The focal point of the hearing, however, was Dr. Dreyer, who previously opined on Mr. Burner's competency during the 2018 proceedings. But when confronted with the 2016 timeframe, she proved unable to render an opinion, candidly acknowledging that she was "unable to provide an opinion, to a reasonable degree of psychological certainty" as to Mr. Burner's competency at that time. Clarifying her reluctance to proffer an expert opinion, Dr. Dreyer emphasized that Mr. Burner rarely spoke during the 2016 proceedings, creating limited evidence as to his competency in 2016, and that his substance abuse between the two proceedings muddied the waters, generating uncertainty as to whether his measured intellect in 2018 existed to the same extent in 2016. As best we can tell from the record, Dr. Dreyer did not have the opportunity to discuss these issues with Mr. Burner's 2016 attorney, who might have been able to shed light on his condition at that time.
{¶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 Civ.R. 60(B), and failed to establish his ineffective assistance of counsel and due process claims. The state also seized upon Dr. Dreyer's inability to render an opinion as a testament to Mr. Burner's failure to meet his burden.
{¶6} Ultimately, the municipal court found Mr. Burner incompetent to stand trial during his 2016 proceedings, and, without engaging in any Civ.R. 60(B) analysis, vacated his sexual imposition conviction. The state now appeals this entry, raising three assignments of error. In its first and second assignments of error, the state asserts that the court erred when it failed to apply res judicata to Mr. Burner's motion and when it conducted a hearing on his competency. As to its third assignment, the state alleges the court abused its discretion in granting Mr. Burner's motion pursuant to Crim.R. 57 and Civ.R. 60.
{¶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 Civ.R. 60(B). But before we dive in, we pause to note the unusual nature of this case—vacating a conviction through the tools of Crim.R. 57(B) and Civ.R. 60(B). The postconvictions statutes, as mentioned above, do not confer jurisdiction over postconviction petitions upon municipal courts, but only upon common pleas courts. See Cowan, 101 Ohio St.3d 372, 2004-Ohio-1583, 805 N.E.2d 1085, at ¶ 20 (); State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 5 (). Because this leaves offenders convicted in municipal court without a statutory procedure to seek relief from their convictions based on evidence outside the record, Ohio courts invoke Crim.R. 57 and Civ.R. 60 to fashion a comparable remedy. See Smith, 2016-Ohio-3521, 68 N.E.3d 114, at ¶ 19 ().
{¶8} Crim.R. 57(B) provides that "[i]f no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules of criminal procedure, and shall look to the rules of civil procedure and to the applicable law if no rule of criminal procedure exists." With our gaze shifted to the rules of civil procedure, Ohio courts recognize that Civ.R. 60(B) affords defendants convicted by a municipal court an opportunity to seek relief from their convictions. See Miller v. Walton, 163 Ohio App.3d 703, 2005-Ohio-4855, 840 N.E.2d 222, ¶ 17 (1st Dist.) (); State v. Denihan, 11th Dist. Ashtabula No. 2016-A-0003, 2016-Ohio-7443, ¶ 19 (). After prompting from the trial court, Mr. Burner invoked Crim.R. 57(B) and Civ.R. 60(B), consistent with this authority. As a result, we must review Mr. Burner's motion to vacate his conviction through a Civ.R. 60(B) lens,1 and accordingly apply an abuse of discretion standard to the court's decision. See State v. Lehrfeld, 1st Dist. Hamilton No. C-030390, 2004-Ohio-2277, ¶ 6 ( ); Schaefer v. Mazii, 2019-Ohio-3808, ___ N.E.3d ___, ¶ 9 (1st Dist.) ().
{¶9} To prevail on a motion pursuant to Civ.R. 60(B), Mr. Burner must demonstrate that he (1) possesses a meritorious claim or defense to present if relief is granted, (2) is entitled to relief under one of the grounds...
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