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Date: 07-03-2020

Case Style:

STATE OF OHIO vs. BOBBY BURNER

Case Number: C-180516

Judge: Pierre H. Bergeron

Court: IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

Plaintiff's Attorney: Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jon Vogt,
Appellate Director

Defendant's Attorney:

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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.
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.
OHIO FIRST DISTRICT COURT OF APPEALS
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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 (“The postconviction statutes require that a
postconviction petition be filed with the court that sentenced the petitioner and confer
jurisdiction over a postconviction petition only upon a common pleas court.”); State v.
Black, 1st Dist. Hamilton No. C-070546, 2008-Ohio-3790, ¶ 8 (“[Defendant] was sentenced
by the municipal court. Therefore, the postconviction statutes did not afford him a means
for securing relief from his conviction.”). 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,
OHIO FIRST DISTRICT COURT OF APPEALS
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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
OHIO FIRST DISTRICT COURT OF APPEALS
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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.
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 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 (“Accordingly, we
hold that a municipal court is without jurisdiction to review a petition for post-conviction
relief filed pursuant to R.C. 2953.21.”); State v. Zupancic, 9th Dist. Wayne No. 12CA0065,
2013-Ohio-3072, ¶ 5 (“Because [defendant’s] conviction arises from municipal court
proceedings, however, postconviction relief is not available to her.”). 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 (“[B]ecause the criminal rules provide no procedure for an offender convicted in
municipal court to seek relief from his conviction based on evidence outside the record,
Crim.R. 57(B) permits the offender to seek relief under Civ.R. 60(B)(5).”).
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶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.) (“It follows that Civ.R. 60(B) may
afford a criminal defendant relief from a judgment of conviction.”); State v. Denihan, 11th
Dist. Ashtabula No. 2016-A-0003, 2016-Ohio-7443, ¶ 19 (“Pursuant to Civ.R. 60(B),
municipal courts may entertain motions to vacate their own judgments in criminal cases.”).
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 (“In the proceedings below, [defendant] unambiguously invoked
Civ.R. 60(B) in seeking relief from the prison sentence imposed for his community-control
violation. Therefore, [defendant’s] motion may not be recast as, or reviewed under the
standards applicable to, a postconviction petition.”); Schaefer v. Mazii, 2019-Ohio-3808,

1 We pause to note that the Ohio Supreme Court in State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545,
882 N.E.2d 431, held that a trial court may recast a motion for relief from judgment as a postconviction
petition even when the defendant presented the motion unambiguously as a Civ.R. 60(B) motion. In
doing so, the court noted that “it is not necessary to look to the Civil Rules or other applicable law for
guidance in the way Crim.R. 57(B) intends, because a procedure ‘specifically prescribed by rule’ exists, i.e.,
Crim.R. 35.” Id. at ¶ 12. However, we do not have such a situation here. No criminal rule exists to address
Mr. Burner’s relief from his conviction entered by the municipal court, and therefore the Civ.R. 60(B)
principles guide our analysis.
OHIO FIRST DISTRICT COURT OF APPEALS
7
__ N.E.3d __, ¶ 9 (1st Dist.) (applying abuse of discretion to the court’s decision to grant a
Civ.R. 60(B) motion).
{¶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 stated in Civ.R. 60(B)(1) through
(5), and (3) submitted the motion within a reasonable time, construed as not more than a
year removed from judgment when pursuing relief under Civ.R. 60(B)(1), (2), or (3). See
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),
paragraph two of the syllabus. Mr. Burner bears the burden of proving his entitlement to
relief pursuant to Civ.R. 60(B), requiring sufficient “ ‘factual material which on its face
demonstrates the timeliness of the motion, reasons why the motion should be granted and
that he has a [claim].’ ” See State v. McComb, 2d Dist. Montgomery No. 26481, 2015-Ohio2556, ¶ 28, quoting Adomeit v. Baltimore, 39 Ohio App.2d 97, 103, 316 N.E.2d 469 (8th
Dist.1974) (applying Civ.R. 60(B) standards to defendant’s motion requesting the municipal
court vacate his conviction). Notably, because he must satisfy each of these three GTE
elements independently, a failure to fulfill one element proves fatal to the motion to vacate.
See Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994), citing GTE at 151
(“These requirements are independent and in the conjunctive; thus the test is not fulfilled if
any one of the requirements is not met.”). The trial court never evaluated any of these three
criteria (contrary to the concurring opinion’s suggestion), and although we must accord
deference to its decision, it must provide us some basis to understand how it exercised its
discretion.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶10} Turning to the first prong, Mr. Burner proposed two related claims below,
painting his trial counsel in 2016 as ineffective by failing to raise the competency issue, and
portraying this as a due process violation as well. But the evidentiary hearing glossed over
these points, with Mr. Burner jumping straight into the competency analysis. In order to
establish ineffective assistance of counsel, Mr. Burner needed to show that his trial counsel’s
performance was both deficient and prejudicial. See Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). At no point during the hearing did Mr.
Burner’s previous trial counsel testify, nor did he tender any evidence showing that counsel
should have appreciated a competency problem at that time. See State v. Lampley, 12th
Dist. Butler No. CA2011-03-046, 2011-Ohio-6349, ¶ 22 (rejecting ineffective assistance
claim based on competency where nowhere in the record did evidence reveal difficulty in
communication between defendant and counsel, and, in fact, counsel told the trial court
that, based upon his conversations with defendant, “he believed [defendant] was lucid and
competent to stand trial.”). Nor does it appear that Dr. Dreyer interviewed Mr. Burner’s
prior trial counsel in her competency review.
{¶11} The failure to tie any deficiency to the ineffective assistance standard assumes
more importance 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.
OHIO FIRST DISTRICT COURT OF APPEALS
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Similarly, Mr. Burner maintains that his statistically similar IQ test scores between 2005
(when in high school) and 2018, his failure to understand his sex offender registration
requirements, and the incident where he provided his probation officer with an incorrect
street address all demonstrate his incompetency in 2016. These points similarly seem to fall
short of establishing the legal standard for incompetency: because of the defendant’s mental
condition, he or she is “incapable of understanding the nature and objective of the
proceedings against the defendant or of assisting in the defendant’s defense[.]” R.C.
2945.37(G). Yes, he exhibited some signs of confusion, but this, standing alone, generally
will not suffice to establish incompetency. See State v. Jones, 1st Dist. Hamilton No. C050112, 2006-Ohio-2339, ¶ 14 (rejecting argument that defendant’s “confusion” showed
incompetence: “[defendant] may have been confused as to how he violated his community
control, but he was not incompetent.”).
{¶12} Although we harbor doubts about the first step in the Civ.R. 60(B) analysis,
we ultimately need not answer whether Mr. Burner satisfied that prong in light of our
disposition regarding the timeliness requirement. The concurrence indicates that we are
grasping onto this issue sua sponte, but the state challenged timeliness from the opening
bell of this motion.
{¶13} Mr. Burner fastened his ineffective assistance and due process claims to
Civ.R. 60(B)(5), which allows relief from “the unjust operation of a judgment,” but is only
available in “extraordinary circumstances.” Melton v. Melton, 1st Dist. Hamilton No. C130123, 2013-Ohio-4790, ¶ 12. Notably, Civ.R. 60(B)(5) is a “catch-all” provision, only
providing refuge when the other expressly enumerated grounds do not apply. CarusoCiresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph one of the
OHIO FIRST DISTRICT COURT OF APPEALS
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syllabus (“Civ.R. 60(B)(5) is intended as a catch-all provision reflecting the inherent power
of a court to relieve a person from the unjust operation of a judgment, but it is not to be
used as a substitute for any of the other more specific provisions of Civ.R. 60(B).”). While
Civ.R. 60(B)(5) does not prescribe an exact timeline, it necessitates filing within a
“reasonable time.” Civ.R. 60(B); see Zwahlen v. Brown, 1st Dist. Hamilton No. C-070263,
2008-Ohio-151, ¶ 12 (“A ‘reasonable time’ for mistake, newly discovered evidence, and fraud
is not more than one year, but the rule does not specify what constitutes a ‘reasonable time’
for seeking relief under Civ.R. 60(B)(5).”). Perhaps needless to say, parties “cannot use the
‘catch-all’ provision of Civ.R. 60(B)(5) as a substitute for the more specific grounds set forth
in Civ.R. 60(B)(1), (2) or (3), to avoid the one-year filing requirement.” Osting v. Osting,
6th Dist. Ottawa No. OT-07-033, 2009-Ohio-2936, ¶ 13; see Hall v. Hall, 2d Dist. Greene
No. 2017-CA-12, 2017-Ohio-7932, ¶ 47, quoting Jackson v. Hendrickson, 2d Dist.
Montgomery No. 21921, 2008-Ohio-491, ¶ 51 (“Consequently, ‘a party cannot use Civ.R.
60(B)(5) to circumvent the one-year limitation by duplicating grounds that are subject to
the limitation.’ ”).
{¶14} That admonition rings true here, as we view Mr. Burner’s Civ.R. 60(B)(5)
arguments as indistinguishable from those that would be presented under Civ.R. 60(B)(2),
which provides relief from judgment based upon “newly discovered evidence which in the
exercise of due diligence could not have been discovered in time for trial.” State v. Noling,
11th Dist. Portage No. 2007-P-0034, 2008-Ohio-2394, ¶ 108. Despite citing Civ.R. 60(B)(5)
in his motion, Mr. Burner essentially requested below that the court grant relief based upon
newly discovered evidence—specifically, Dr. Dreyer’s and Officer Heithaus’s testimony—
which he asserts demonstrates his incompetency in 2016, rendering his counsel ineffective
OHIO FIRST DISTRICT COURT OF APPEALS
11
and his due process rights violated. He admits as much in his brief: “[T]he amended
postconviction motion was based upon new evidence in the form of Dr. Dreyer’s testimony
and [her] report that was cogent, outside the record, and demonstrated a substantive
ground for relief.” (Emphasis added.) But he filed his claim for relief nearly two years after
the underlying judgment. That time period also almost doubles that allotted for
postconviction petitions in cases arising from common pleas courts. See R.C. 2953.21(A)(2).
{¶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 at 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 Civ.R. 60(B) analysis, but instead found the claim
barred based on the lack of substantiation that the “new” evidence could not have been
marshalled at the time of trial. Id. at ¶ 20-24. That case, like this one, contained no
evidence that trial counsel actually dropped the ball, id. at ¶ 23—and underscoring that
point here, Mr. Burner never fleshed out the ineffective assistance claim below or on appeal.
He instead focused solely on new evidence of competency rather than on any ineffective
assistance claim. Accordingly, on these facts and given the nature of the claim for relief, we
believe that Mr. Burner’s almost two-year delay in seeking postjudgment relief was
unreasonable.
{¶16} Although the trial court did not conduct a Civ.R. 60(B) analysis, if it had, it
would have abused its discretion in finding Mr. Burner’s motion timely on the state of this
record. That is enough to warrant reversal. See McComb, 2d Dist. Montgomery No. 26481,
2015-Ohio-2556, at ¶ 34 (“However, [defendant] failed to meet two of the other necessary
OHIO FIRST DISTRICT COURT OF APPEALS
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requirements for Civ.R. 60(B) relief. One such failure is fatal[.]”). Accordingly, we sustain
the state’s third assignment of error.

Outcome: 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 Civ.R. 60(B), and accordingly we sustain the state’s third assignment of error. Our disposition of the state’sthird assignment of error renders its first and second assignments of error moot. We, therefore, reverse the trial court’s judgment granting Mr. Burner’s motion pursuant to Crim.R. 57(B) and Civ.R. 60(B) and remand the cause for the court to enter judgment denying relief.

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