Login | April 04, 2025
5th District appellate panel upholds fentanyl conviction
KEITH ARNOLD
Special to the Legal News
Published: April 3, 2025
A Fifth District Court of Appeals panel recently affirmed a trial court’s conviction of a Newark man on a fentanyl-related drug charge despite the offender’s argument that the lower court should not have allowed him to argue on his own behalf.
The 3-0 appellate panel was not persuaded by 59-year-old Billy Lee’s assertion that his waiver of a right to counsel in the trial court was not made knowingly, intelligently and voluntarily.
“The trial court informed Lee that he had a constitutional right to be represented by counsel and advised Lee that it would be unwise to represent himself. Lee said that he understood,” Fifth District Judge David Gormley wrote for the panel. “Lee was told that he would be held to the same procedural and evidentiary rules that attorneys are required to abide by. Lee said that he understood. The court advised Lee, too, that the firearm specification carried a mandatory term of one year of incarceration and that the maximum prison sentence on the drug charge was 18 months. The total possible sentence in the case was therefore, the judge told Lee, two-and-a-half years at the state penitentiary. Again, Lee said that he understood.”
According to case background, Newark Police Officer Wesley Jackson initiated a traffic stop of a vehicle being driven by Oscar Evans in August 2023. Lee, the owner of the vehicle, was seated in the front passenger seat.
Lee told Jackson that he had a pistol in his possession, and the police officer took the weapon without incident. With Lee’s consent, Jackson searched the vehicle, summary detailed.
During his search, Jackson found two small containers with a white powder-like substance in each of them. The officer also found three bags, one of which had the name Billy written on it, and another contained a bank card with the name Billy Lee on it.
Newark Police Officer Adam Carter who subsequently arrived to assist with the traffic stop, testified that Lee was inconsistent in describing his recent activity, just as he was about possession of the substance in the containers, which was later determined to be fentanyl.
A Licking County grand jury indicted Lee on one count of possession of a fentanyl-related compound––a fourth-degree felony––with an accompanying one-year firearm specification, summary continued.
Lee was represented by court-appointed counsel from the start of the case the morning of trial.
Lee’s jury trial was scheduled to begin April 10, 2024, at which time he informed the court of his desire to fire his attorney and represent himself.
The judge indicated that Lee’s lawyer was experienced, and he asked Lee why he wanted to represent himself. Lee responded that he believed in himself, though he was willing to treat the attorney as his co-counsel.
The judge told Lee either he represented himself or the lawyer was to represent him to which Lee responded, “I represent myself.”
The judge subsequently explained to Lee if he represented himself, he couldn’t argue on appeal that he had ineffective assistance of counsel. Lee responded that he understood, summary detailed.
At the conclusion of the discussion, Lee signed a written waiver of his right to be represented by counsel. His appointed counsel was instructed to remain present throughout the trial as standby counsel for Lee.
A jury subsequently found Lee guilty on the drug-possession charge and also found that the prosecution had proven the firearm specification, and the trial judge imposed a 12-month sentence on the drug charge plus the mandatory one-year prison term on the firearm specification.
Lee, currently an inmate at Richland Correctional Institution, appealed the conviction on the basis that the trial court violated his right to counsel by allowing him to represent himself at trial, rendering the resulting conviction against the manifest weight of the evidence.
“Lee contends that the trial judge failed to apprise him about the nature of the drug-possession charge and the (gun) specification,” Gormley continued. “Any suggestion on Lee’s part, though, that he was uncertain about his drug charge or about the specification is surely not supported by the record.”
The appellate judge noted that Lee was indicted in August 2023, and his trial was held in April 2024––an eight-month period during which he was represented by counsel with whom Lee met 11 times.
“In response to the trial judge’s questions, Lee said on the morning of trial that he understood that he faced charges involving his possession of the drugs and the firearm rather than ownership of those items. Again, he indicated, too, that he understood the concept of constructive possession and had discussed that concept with his attorney.
“We find ample support in this record for our conclusion that Lee knew what he was doing when he chose to represent himself on the drug and firearm allegations.”
Presiding Judge William Hoffman and Fifth District Judge Kevin Popham joined Gormley’s opinion.
Copyright © 2025 The Daily Reporter - All Rights Reserved