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


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  • [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