State v. Jirousek , 2013 Ohio 4796 ( 2013 )

[Cite as State v. Jirousek, 2013-Ohio-4796.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99641
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL D. JIROUSEK
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-559093
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 31, 2013
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Callista R. Plemel
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Michael Jirousek appeals from his conviction of attempted assault on a
peace officer. He claims he was denied due process of law because the trial court failed
to determine his competency after it referred him for a competency evaluation. Finding
merit to the claim, we reverse the trial court’s judgment and remand the matter for further
proceedings consistent with this opinion.
Substantive Facts and Procedural History
{¶2} On January 27, 2012, Jirousek, 27, a college graduate, got into an argument
with his parents when his parents refused to allow him to drive the family car to go on a
date. His parents called the police. When confronted by three police officers who
responded to the call, Jirousek swung and hit one of the officers, and was arrested.
{¶3} Jirousek made an initial appearance in court on January 31, 2012, and bail
was set. A week later, he was referred to the court’s psychiatric clinic for an evaluation
to determine if he was competent to stand trial. The court’s journal entry dated February
7, 2012 stated the following:
* * * Defendant is referred to court psychiatric clinic.
Director, Psychiatric Clinic:
In accordance with provisions of the Ohio Revised Code,
2945.371[“Evaluations of defendant’s mental condition at relevant time;
separate mental retardation evaluation competence to stand trial”]; etc.
2947.06(B)[“Testimony in mitigation of sentence; presentence investigation
report; psychological reports”] report for the purpose of determining the
disposition of a case: eligibility for mental health/ developmental disability
due to a psychotic disorder (formerly MDO).
You are directed to examine Michael D Jirousek.
However, despite the referral, the docket does not reflect any further reference to the
issues of Jirousek’s competency.
{¶4} Also on February 7, 2012, the case was referred to the grand jury for
indictment. On February 21, 2012, Jirousek was indicted for assault on a peace officer,
a fourth-degree felony and resisting arrest, a second-degree misdemeanor. On March 6,
2012, he was arraigned.
{¶5} Over the course of the next few months, eight pretrials were held. Then,
on July 25, 2012, the trial court issued a capias for him because he was incarcerated and
awaiting the disposition of an unrelated case in Geauga County (to which he later pleaded
guilty, receiving a two-and-a-half year prison term).
{¶6} Subsequently, on February 7, 2013, Jirousek pleaded guilty in the instant
case to attempted assault on a peace officer, a felony of the fifth degree. He waived a
PSI, and the court proceeded to sentence him to a seven-month prison term, allowing him,
however, to serve the term concurrently with his prison term in Geauga County. The
only inkling that the defendant’s mental health may be an issue from the record before us
is defense counsel’s statement to the court before sentencing that “[Jirousek’s] very sorry
for what he did. He’s going to focus on getting an anger management program in and
also any mental health programs that they may have at the facility * * *.”
{¶7} Jirousek now appeals, raising five assignments of error for our review.
Under the first assignment of error, he claims he was denied due process of law because
there was no judicial determination of his competence after being referred for a
competency evaluation.
{¶8} 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 stand trial. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d
215, ¶ 155, citing Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103(1975). “Fundamental principles of due process require that a criminal defendant who is
legally incompetent shall not be subjected to trial.” Id., citing State v. Berry, 72 Ohio
St.3d 354, 359, 1995-Ohio-310, 650 N.E.2d 433.
{¶9} R.C. 2945.37 addresses the competency issue. It states, in pertinent part:
(B) In a criminal action in a court of common pleas, a county court,
or a municipal court, the court, prosecutor, or defense may raise the issue of
the defendant’s competence to stand trial. If the issue is raised before the
trial has commenced, the court shall hold a hearing on the issue as provided
in this section. If the issue is raised after the trial has commenced, the court
shall hold a hearing on the issue only for good cause shown or on the
court’s own motion.
(C) The court shall conduct the hearing required or authorized under
division (B) of this section within thirty days after the issue is raised, unless
the defendant has been referred for evaluation in which case the court shall
conduct the hearing within ten days after the filing of the report of the
evaluation * * *.
(Emphasis added.)
{¶10} This court has consistently held that, pursuant to R.C. 2945.37(B), a trial
court must hold a hearing on the issue of a defendant’s competency if the issue is raised
prior to trial. In State v. Dowdy, 8th Dist. Cuyahoga No. 96642, 2012-Ohio-2382, the
record reflected that the trial court ordered appellant (to Northcoast Behavioral
Healthcare) for a competency evaluation. We reversed appellant’s conviction and
remanded for the trial court to vacate his guilty plea because, despite the trial court’s
explicit order for a psychiatric evaluation, no competency hearing was held, neither did
the record reflect any finding of competency, a filing of the psychiatric report, or
stipulation by the parties regarding defendant’s competency. Dowdy at ¶ 15.
{¶11} We distinguished State v. Bock, 28 Ohio St.3d 108, 502 N.E.2d 1016(1986), where the court held the lack of a hearing was harmless error, because defendant
participated in trial and offered his own testimony and the record failed to reveal
sufficient indicia of incompetency. We explained that because the results of the
evaluation ordered by the court were not made part of the record, nor stipulated to by the
parties, we were unable to glean sufficient information from the record to conclude the
trial court’s failure to conduct the hearing was harmless. Id. at ¶ 16, citing State v. Cruz,
8th Dist. Cuyahoga No. 93403, 2010-Ohio-3717, ¶ 11-16. See also State v. Morris, 8th
Dist. Cuyahoga No. 98591, 2013-Ohio-1033, ¶ 10. As the court in State v. Were, 94
Ohio St.3d 173, 177 2002-Ohio-481, 761 N.E.2d 591, remarked, “common sense dictates
that no defendant can make a record of lack of competency absent the findings and
hearings contemplated by R.C. 2945.37 and 2945.371,” citing Bock at 113 (Wright, J.,
dissenting).
{¶12} Similarly here, the issue of the defendant’s competency was raised, as
reflected by the trial court’s February 7, 2012 judgment entry. However, the trial court
did not hold a hearing on this issue, or otherwise make a formal finding of competency on
the record; neither does the record reflect that a psychiatric evaluation report was filed or
that the parties stipulated to the defendant’s competency.1 The docket is simply devoid
of any further reference to the competency issue subsequent to the court’s referral for
psychiatric evaluation. As in Dowdy, we are unable to glean sufficient information from
this record to conclude the court’s failure to conduct the statutorily required hearing is
harmless. Without first conducting a hearing and determining Jirousek’s competency,
the trial court could not ensure that his guilty plea was indeed knowing, intelligent, and
voluntary. Morris at ¶ 11.
{¶13} The first assignment of error is sustained. Appellant’s conviction is
reversed, and this matter is remanded to the trial court to vacate the guilty plea and
conduct a hearing on appellant’s competency pursuant to R.C. 2945.37. The remaining
assignments of error are moot.
{¶14} This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
After appellant and appellee filed the respective briefs, this court, sua sponte, ordered the
1
psychiatric evaluation report to be filed with this court. The report was subsequently filed by the
clerk. However, there is no indication whether the report was ever considered by the trial court.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
MARY EILEEN KILBANE, J., CONCURS;
EILEEN A. GALLAGHER, P.J., CONCURS (WITH SEPARATE CONCURRING
OPINION ATTACHED)
EILEEN A. GALLAGHER, P.J., CONCURRING:
{¶15} The system failed this appellant.
{¶16} The rush to resolution, which seems to be the underlying principle of the
Early Case Management (“ECM”) program, has contributed to the failure.
{¶17} The appellant’s initial appearance on January 31, 2012, was via video
conferencing. Bond was set, a trial judge assigned and the ECM standing order was
journalized, including an order that parties and counsel be present on February 7, 2012,
for an ECM hearing.
{¶18} The record does not reflect that the appellant or counsel was actually present
on February 7, 2012. The journal entry of that date merely reflects “No early resolution.
Case referred to prosecutor for further action * * *.” Appellant was referred at that
time to the Court Psychiatric Clinic for an evaluation to determine, among other things,
competency to stand trial.
{¶19} There is no indication as to why appellant was so referred or who requested
the referral.
{¶20} A report was prepared by psychologist Bethany A. Young-Lundquist and
dated March 5, 2012. Said report was addressed to the trial court at Courts Tower 22D
Justice Center.
{¶21} Dr. Young-Lundquist in that report that was made part of the record by
order of this court opined, with a reasonable degree of psychological certainty, that
appellant was competent to stand trial. She also made clear that the appellant, based
upon a referenced diagnosis was eligible “for supervision in the Mental
Health/Developmental Disability Program.”2
{¶22} Someone raised the proverbial red flag in this case that suggested that
appellant has, or may have, mental health issues. However, after that flag was raised, no
one took a second look.
{¶23} Had anyone paid attention, the appellant could have been referred for an
independent evaluation, which may have reached a different conclusion.
{¶24} This case should serve as a notice to all: the courts, the prosecutors and
defense counsel that haste sometimes does, in fact, make waste.
In order to maintain the appellant’s privacy, specific records and findings of the Court
2
Psychiatric Clinic will not be identified.