In re S.D. , 2014 Ohio 2528 ( 2014 )

[Cite as In re S.D., 2014-Ohio-2528.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99763
IN RE: S.D.
A Minor Child
JUDGMENT:
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-11115723
BEFORE: Celebrezze, P.J., Jones, J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: June 12, 2014
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
By: Amanda J. Powell
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Michael Hustick
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Juvenile appellant, S.D., appeals his delinquency adjudication, which resulted
in his internment in a juvenile detention facility until his twenty-first birthday. Appellant
claims he was not competent to stand trial, and the competency evaluations relied on by
the trial court were materially flawed. Appellant also argues that he was denied his right
to allocution before disposition. After a thorough review of the record and law, we
affirm appellant’s adjudication as a delinquent minor, but vacate the court’s disposition
and remand the matter so appellant may be afforded the opportunity to be heard prior to
disposition.
I. Factual and Procedural History
{¶2} On July 24, 2011, when appellant was 15 years old, Pedro Sarsama and
Vanessa Willaman, both students at Cleveland State University, drove to a nearby gas
station to buy drinks and a pack of cigarettes. Willaman drove, parked, and walked
inside while Sarsama waited in the car. Willaman purchased some items and walked out
of the store. Immediately outside the door, she exchanged words with a man hanging
around the entrance. She walked to her car, got in, and started a conversation with
Sarsama. The man she spoke with earlier approached the driver’s side of the vehicle and
started making unwanted advances toward Willaman. He was accompanied by a young
man, whom Sarsama later identified as appellant. The older man, whose identity remains
a mystery, leaned on the car. Willaman demanded that he get off her car. The man then
produced a handgun and pulled Willaman from the vehicle. He began viciously beating
her with the handle of the gun. Stunned, Sarsama began to get out of the car but was
stopped when appellant got in and took Willaman’s purse and Sarsama’s cell phone.
{¶3} The attendant working inside the gas station store, Jordan Martin, received a
call on his cell phone from an individual in the parking lot alerting him to a situation
outside. Martin walked out of the store and saw a person lying on the ground partially
obscured by a vehicle and a crowd of people. He recognized appellant among the group.
One person was beating a woman with the handle of a gun while she was lying on the
ground. Martin got out his own gun and fired into the air. The crowd rapidly disbursed,
with the armed attacker and appellant fleeing together.
{¶4} Sarsama ran to help Willaman as she lay in the parking lot. He attempted to
stop the gushing flow of blood that began to pool on the concrete. Police and emergency
personnel arrived shortly thereafter and transported Willaman to the hospital where she
remained for four days. As a result of trauma to her head, she does not remember the
attack or the events immediately preceding it.
{¶5} Martin knew appellant and was able to identify him as a member of the crowd
he observed. Appellant was arrested, and a complaint was filed August 30, 2011, in the
Cuyahoga County Common Pleas Court, Juvenile Division, alleging that appellant was
delinquent of two counts of aggravated robbery in violation of R.C. 2911.01(A)(1)
(felonies of the first degree if committed by an adult), and one count of felonious assault
in violation of R.C. 2903.11(A)(1) (a felony of the second degree if committed by an
adult).1 These counts carried one- and three-year firearm specifications.
{¶6} On September 20, 2011, the state moved the trial court to hold an amenability
hearing to determine whether appellant would be bound over to the jurisdiction of the
general division of the common pleas court or remain in the juvenile division. At the
same pretrial hearing, appellant’s attorney moved that appellant be evaluated for
competency. The trial court delayed the probable cause and bind-over hearings and
ordered appellant evaluated by the court psychiatric clinic, which occurred on February
22, 2012. The court also appointed a guardian ad litem for appellant.
{¶7} The psychological evaluation resulted in a finding that appellant was not
competent to stand trial. The evaluation and report done by Dr. Steven Neuhaus, which
was stipulated to by both sides, found that appellant had significant psychological issues
that prevented him from effectively participating in the proceedings. Dr. Neuhaus
recommended that appellant be treated with medications or adjustment to medications and
be housed in a residential facility for services and treatment. However, Dr. Neuhaus
could not identify any facility that would take appellant. The state sought to have
appellant monitored and treated in the juvenile facility where he was currently being
housed after failing to abide by the terms of his release. The trial court granted the
state’s request on March 13, 2012. The court also ordered an additional competency
Appellant was later charged in two other cases — one for escape when he violated the
1
conditions of his bond and the other for assaulting a fellow youth at a detention facility.
evaluation to be performed within two to three weeks. Dr. Neuhaus again interviewed
appellant on April 3, 2012, in compliance with this order.
{¶8} At a competency hearing held on May 23, 2012, Dr. Neuhaus testified that
appellant had responded well to treatment. It was the doctor’s opinion that appellant
sufficiently understood the proceedings and was able to participate in his defense. Dr.
Neuhaus opined that while appellant suffered from severe psychological problems,
medication had stabilized him to the point where he was competent to stand trial. At the
close of the hearing, the trial court found appellant competent and set a date for a
probable cause hearing. On June 21, 2012, the court issued a written decision finding
appellant competent.
{¶9} After a hearing held on September 11, 2012, the trial court determined that
there was probable cause to believe appellant committed the crimes described in the
complaint. The court also ordered that an investigation and report be completed into
appellant’s background, including an additional psychological evaluation. The court
then held a bind-over hearing on October 25, 2012. At that hearing, the court heard
arguments and took into consideration appellant’s reduced mental acuity and
psychological issues as well as the violent nature of the crimes alleged. The juvenile
court determined to retain jurisdiction over appellant, and a trial date was set.
{¶10} A trial, held on February 11, 2013, resulted in the adjudication of appellant
as a delinquent minor. The trial court found that appellant had committed crimes as set
forth in the complaint. The court stayed disposition until two other cases were resolved.
On March 6, 2013, a disposition hearing was held. The trial court’s disposition called
for appellant to be placed in a juvenile detention facility until his twenty-first birthday.
{¶11} Appellant then filed the instant appeal, assigning three errors:
I. S.D. was denied his right to due process of law because he was
adjudicated delinquent when he was incompetent to stand trial, in violation
of the Fifth and Fourteenth Amendments to the United States Constitution
and Article I, Section 16 of the Ohio Constitution.
II. S.D. was denied his right to due process of law when the juvenile court
determined him competent to stand trial outside the parameters of R.C.
2152.57(A), 2152.58(A) and (D), the Fifth and Fourteenth Amendments to
the United States Constitution, and Article I, Section 16 of the Ohio
Constitution.
III. The juvenile court violated S.D.’s rights to due process and equal
protection when it imposed disposition without providing him the
opportunity for allocution, in violation of the Fifth and Fourteenth
Amendments to the United States Constitution, Article I, Sections 2 and 16
of the Ohio Constitution, Crim.R. 32, Juv.R. 29, and Juv.R. 34.
II. Law and Analysis
A. Competent to Stand Trial
{¶12} In his first assignment of error, appellant maintains that he was not
competent to stand trial, and the trial court erred in finding him competent. “[A] person
[who] lacks the capacity to understand the nature and object of the proceedings against
him, to consult with counsel, and to assist in preparing his defense may not be subjected
to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
This fundamental legal principle is inclusive of juvenile proceedings. In re R.H., 8th
Dist. Cuyahoga No. 98426, 2013-Ohio-1030, ¶ 9. Therefore, if sufficient indicia of
incompetency arises during the pendency of the proceedings, the juvenile court is
required to hold a hearing and determine if the juvenile is competent to stand trial. State
v. Were, 94 Ohio St.3d 173, 175, 2002-Ohio-481, 761 N.E.2d 591.
{¶13} In juvenile cases, competency determinations are governed by R.C. 2152.51
to 2152.59. Appellant first complains that the trial court erred when it found him
competent to stand trial.
{¶14} R.C. 2152.56(B) mandates that a competency assessment report shall
address the child’s capacity to do all of the following:
(1) Comprehend and appreciate the charges or allegations against the child;
(2) Understand the adversarial nature of the proceedings, including the role
of the judge, defense counsel, prosecuting attorney, guardian ad litem or
court-appointed special assistant, and witnesses;
(3) Assist in the child’s defense and communicate with counsel;
(4) Comprehend and appreciate the consequences that may be imposed or
result from the proceedings.
{¶15} Appellant complains that the trial court erred in relying on any of the
competency evaluations performed by Dr. Neuhaus because a discussion of the exact
crimes and elements appellant was accused of committing is not apparent from the report.
Appellant cites to the fact that one of Dr. Neuhaus’s reports indicates appellant was
facing “aggravated robbery with possible gun specification (felony 1) [and] aggravated
assault (felony 5).” In fact, appellant faced aggravated robbery with gun specifications
and felonious assault charges. Appellant complains that at no time did Dr. Neuhaus
discuss with him that he was charged with two counts of first-degree-felony aggravated
robbery, one count of second-degree-felony felonious assault, and related firearm
specifications.
{¶16} A discussion of the exact charges and elements of a case are not required.
The statute only mandates that the evaluation examine the individual’s capacity to
“[c]omprehend and appreciate the charges or allegations * * *.” R.C. 2152.56(B). Dr.
Neuhaus discussed with appellant the aggravated robbery charge and indicated appellant
had a sufficient understanding of it, the possible consequences of participating in the
proceedings, communicating with his attorney, and helping mount an appropriate defense.
Appellant, heeding the advice of counsel, would also not discuss the charges or their
factual bases. Appellant’s responses to several hypothetical situations brought Dr.
Neuhaus to the conclusion that appellant sufficiently understood his situation and the
consequences. This, along with the charges that were discussed, reasonably led to the
conclusion that appellant was capable of understanding the specific charges in the case
and gave the trial court sound footing in finding appellant competent.
{¶17} Perhaps the best way for an evaluator to determine if individuals
comprehend the charges levied against them is to discuss those specific charges.
However, the failure to do so does not lead to the conclusion that the evaluation is fatally
flawed. In In re R.H., 8th Dist. Cuyahoga No. 98426, 2013-Ohio-1030, this court found
that it was not plain error for the trial court to use a competency report generated in one
case to establish that the same juvenile was also competent in another contemporaneous
case. This court stated:
Although we find error, we do not find that the trial court’s error was so
plain that it created an “obvious defect in the trial proceedings,” nor that the
error “affected the outcome of the trial.”
***
* * * Although the competency assessment was ordered for the aggravated
assault case, the assessment does reference a “breaking and entering” case
where R.H. reported to the evaluator that he refused a plea bargain, against
his attorney’s advice, because he was innocent. Although the burglary case
did not involve a breaking and entering charge, the elements of these crimes
are similar, and based on the surrounding facts, we infer that R.H. was
referring to the burglary case.
Id. at ¶ 15-16.
{¶18} In R.H., there was a stipulation to the competency report, which appellant
claims distinguishes the case from his situation. Here, the report was not stipulated to,
but appellant never raised any issue with the breadth of the report or the discussion of the
charges involved therein. Further, appellant’s counsel did not cross-examine Dr.
Neuhaus on these points. Appellant failed to raise objections or point out the defects in
the report to the trial court and offered nothing to question his ability to understand the
charges levied against him. Where errors have not been brought to the court’s attention
at a time when they could be addressed, they are waived on appeal. State v. McKee, 91
Ohio St.3d 292, 294, 744 N.E.2d 737 (2001) (“Errors that arise during a trial that are not
brought to the attention of the court are ordinarily waived and may not be raised on appeal
unless there is plain error, i.e., but for the error, the outcome of the trial clearly would
have been otherwise”), citing Crim.R. 52(B); State v. Johnson, 88 Ohio St.3d 95, 111,
723 N.E.2d 1054, (2000). Therefore, similar to the appellant in R.H., appellant has
waived all but plain error. R.H. at ¶ 8, citing State v. Mink, 101 Ohio St.3d 350,
2004-Ohio-1580, 805 N.E.2d 1064, ¶ 29, (“R.H. did not object to any aspect of the
competency assessment at the trial-court level. * * * Accordingly, we review this
assignment of error only for plain error”).
{¶19} In this case, the evaluator discussed the nature of the charges, but referenced
aggravated assault rather than felonious assault. The difference between aggravated
assault and felonious assault in terms of evaluating whether an individual can understand
what is required for proof is inconsequential. In fact, one is merely an inferior-degree
offense of the other. The two crimes contain the same elements with a mitigating factor
built into the statute that decreases the punishment for aggravated assault. See State v.
Deem, 40 Ohio St.3d 205, 210-211, 533 N.E.2d 294 (1988); State v. Deanda, 136 Ohio
St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 11.
{¶20} If this was the most serious offense appellant faced, there may be some
amount of prejudice because the aggravated assault charge was described in Dr.
Neuhaus’s report as a fifth-degree felony if committed by an adult, while the felonious
assault charge was a higher degree of felony. However, appellant faced other charges
classified as first-degree felonies if committed by an adult. Also discussed was the
possible consequence that appellant would be remanded to a facility, which Dr. Neuhaus
interpreted to mean a detention facility.
{¶21} A competency evaluation does not require the evaluator to act as if he is an
attorney and explain the minutia of criminal procedure. The evaluator must assess
whether the individual, in conjunction with advice from legal counsel, is capable of
assisting counsel, understanding those things necessary for a proper defense, and for the
individual to make informed decisions.
{¶22} Appellant makes much that Dr. Neuhaus did not discuss the fact that he
could face trial as an adult. However, he was not bound over to the jurisdiction of the
general division of the common pleas court. Therefore, a failure to address this aspect of
his case is not plain error.
{¶23} Appellant also claims that Dr. Neuhaus erred when he opined that appellant
was competent. Pointing to mainly the first competency evaluation, appellant argues that
he was incompetent and that no restorative services were provided between the time of
the first evaluation and the second. He only received an adjustment in his medication.
The second evaluation revealed that appellant was more oriented and able to focus on a
given task, but that he still had some difficulty focusing. Dr. Neuhaus testified that
appellant required more time and direction from counsel, but could adequately understand
what was going on and maintain sufficient focus to participate. There is nothing in the
record that transpired from the adjudicatory hearing to contradict this assessment.
Further, there is nothing in the record that demonstrates appellant’s mental state had
changed since the competency hearing. A significant period of time passed between the
competency evaluation and the adjudicatory hearing. However, appellant’s attorney
never brought up a change in appellant’s mental state and none was apparent in the
record. The attorney also did not indicate any difficulty dealing with appellant.
Appellant argues that the record is unclear about his mental state during trial and his
ability to participate in the proceedings because he was asked only one question to which
he gave an appropriate one-word response, and the trial court once asked if appellant was
awake.
{¶24} If there were changes in his mental state, it was incumbent upon appellant’s
attorney to bring them to the court’s attention and put them on the record. The silent
record presumably means that appellant’s attorney was able to communicate effectively
with appellant and that no further issues arose after appellant was restored to competency.
{¶25} There was sufficient credible evidence for the trial court to find that
appellant was competent to stand trial. Therefore, appellant’s first assignment of error is
overruled.
B. Procedural Deficiencies
{¶26} Appellant advances a number of issues where he contends the trial court
procedurally erred when finding him competent. Appellant complains:
The competency determination violates R.C. 2152.57(A) or R.C.
2152.58(A) and (D), because the competency evaluation was conducted by
someone not officially appointed by the court to conduct the evaluation in
violation of R.C. 2152.57(A); was submitted to the court at the hearing on
May 23, 2013, fifty calendar days after the evaluation was ordered in
violation of R.C. 2152.57(A); the court conducted the competency hearing
thirty-six calendar days after the evaluation was performed, but on the same
day it was submitted to the court in violation of R.C. 2152.58(A); and, the
court made a written determination of S.D.’s competence twenty business
days after the hearing was conducted in violation of R.C. 2152.58(D).
{¶27} R.C. 2152.53 sets forth the steps that are required when a question of
competency is raised. In this case, the trial court determined there was a reasonable basis
for a competency evaluation and ordered that one be performed. This evaluation resulted
in a finding of incompetency. Under R.C. 2152.59, once a minor is found incompetent
but able to be restored to competency within a reasonable time, a plan for restoration
services is to be initiated and the child monitored according to the further provisions
within that statute. R.C. 2152.59(C) and (E). Here, the trial court ordered that appellant
receive medications and supervision at the detention facility where he was being housed
awaiting adjudication.
{¶28} These alleged errors are reviewed for plain error because no objection was
lodged during the course of appellant’s case. No argument was raised below regarding
the authority of Dr. Neuhaus to examine appellant, the timeliness of his report, or the
timeliness of the competency hearings.
{¶29} Appellant’s citation to R.C. 2152.57 and 2152.58 are not the only statutes
implicated here. Appellant does not recognize that the second competency hearing was
governed by R.C. 2152.59. This statute directs the trial court to make a determination
pursuant to R.C. 2152.53 after receiving a report indicating that competency has been
restored. R.C. 2152.59(H)(1). It also allows the court to order a new competency
evaluation, which was performed by Dr. Neuhaus, the same doctor who was earlier
appointed by the court to evaluate appellant. Id. It also mandates that the court act
within 15 business days of receiving a report outlined in R.C. 2152.59(F).
{¶30} After appellant was restored to competency, the evaluations indicated
appellant had significant mental health issues, but that he was alert, aware of what was
going on around him, and able to assist counsel and participate in the proceedings. Even
if the time constraints in R.C. 2152.57 and 2152.58 applied, there is no indication that the
failure of the trial court to strictly abide by the temporal requirements set forth in the
statute caused any prejudice to appellant. A further evaluation for adjudication purposes
was also conducted and did not indicate a significant change in appellant’s condition.
{¶31} In this case, just as in In re T.L., 5th Dist. Licking No. 12-CA-81,
2013-Ohio-3356, it was not plain error when the trial court held a hearing after the 45-day
period set forth in the statute. There was no objection raised or any instances of conduct
that would indicate that appellant’s mental state had changed. The same is true of the
issuance of a written opinion 20 rather than 15 days after the hearing. Therefore,
appellant’s second assignment of error is overruled.
C. Allocution
{¶32} Crim.R. 32(A) gives the condemned individual the right to speak prior to
sentencing or the right to allocution. State v. Green, 90 Ohio St.3d 352, 738 N.E.2d
1208 (2000). “[I]t represents a defendant’s last opportunity to plead his case or express
remorse.” Id. at 359-360. Although not governed by Crim.R. 32, a juvenile has a right
to allocution similar to an adult. Garfield Hts. v. J.P., 8th Dist. Cuyahoga No. 87166,
2006-Ohio-4590, ¶ 8.
{¶33} The Second District has recognized that
“an adjudicated delinquent has a right of allocution before disposition.”
Even if it is unclear whether a statement from the juvenile would have an
effect, “at the very least, he should * * * be[] afforded the opportunity to be
heard, including an expression of remorse in an effort to potentially mitigate
his punishment.”
In re B.M., 2d Dist. Montgomery No. 25237, 2013-Ohio-1233, ¶ 7, quoting In re K.S.J.,
2d Dist. Montgomery No. 24387, 2011-Ohio-2064, ¶ 10. This would indicate that a
failure to afford a right to allocution is reversible error regardless of whether the error
caused harm. This can be contrasted with the holdings of the Ohio Supreme Court and
other districts: “Thus, when a trial court imposes a sentence without first asking the
defendant if he or she wishes to exercise their right of allocution, ‘resentencing is
required unless the error is invited error or harmless error.’” In re R.D.G., 12th Dist.
Butler No. CA2010-12-323, 2011-Ohio-6018, ¶ 19, quoting State v. Campbell, 90 Ohio
St.3d 320, 326, 738 N.E.2d 1178 (2000).
{¶34} The state argues that any error is harmless. It essentially claims that no
matter what appellant would have said, it would not have altered the sentence imposed by
the trial court. However, it is clear from the record that the trial court considered
appellant’s silence when adjudicating this matter.
{¶35} The record indicates the trial court relied on appellant’s lack of remorse
during disposition. The court stated, “[a]nd then I’ve never even heard any words of
remorse or contrition on [appellant’s] part regarding his culpability in this. And that’s
what scares me.” Those words of contrition the court was looking for normally come, if
at all, at the sentencing or dispositional hearing after the defendant is given the
opportunity to make a statement. The fact that appellant was not afforded that right, and
this was later used against him, indicates that the failure to afford appellant an
opportunity to speak was not harmless error.
III. Conclusion
{¶36} Appellant was found to be competent to stand trial by competent, credible
evidence. Nothing in the record sufficiently contradicts that finding. Therefore,
appellant was competent to stand trial, and the trial court’s adjudication of appellant as a
delinquent minor was not error. However, the trial court’s failure to afford appellant an
opportunity to speak prior to disposition requires reversal. On remand, appellant must be
afforded the opportunity to speak prior to the trial court’s disposition in this case.
{¶37} Finding of delinquency affirmed; cause reversed in part and remanded to the
lower court for disposition consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas, Juvenile Court Division to carry this judgment into execution. The
finding of delinquency having been affirmed, any bail or stay of execution pending appeal
is terminated. Case remanded to the trial court for disposition.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR