State v. Pepper , 2014 Ohio 3841 ( 2014 )

[Cite as State v. Pepper, 2014-Ohio-3841.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
: Appellate Case No. 2013-CA-6
Plaintiff-Appellee :
: Trial Court Case No. 12-CR-154
v. :
:
DONALD R. PEPPER : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 5th day of September, 2014.
...........
ANTHONY E. KENDELL, by JANNA L. PARKER, Atty. Reg. #0075261, Miami County
Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373
Attorneys for Plaintiff-Appellee
REBEKAH S. NEUHERZ, Atty. Reg. #0072093, Neuherz Law Office, LLC, 115 North Main
Street, Suite F, Urbana, Ohio 43078
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Donald R. Pepper appeals from his conviction and sentence following a
negotiated guilty plea to one count of murder.
[Cite as State v. Pepper, 2014-Ohio-3841.]
{¶ 2} Pepper advances two assignments of error. First, he contends the trial court erred
in denying his motion for a second psychological examination. Second, he alleges ineffective
assistance of counsel based on his attorney’s failure to file a written plea of not guilty by reason
of insanity (NGRI).
{¶ 3} The record reflects that Pepper originally was charged with one count of
aggravated murder. He entered a not-guilty plea. Thereafter, he moved for and received a
psychological evaluation that examined his competence to stand trial and his sanity at the time of
the offense. Following the evaluation, the trial court held a hearing on the matter. At the
hearing, the parties stipulated to the admissibility of the examining doctor’s reports, which found
that Pepper was competent to stand trial and that he did not meet the legal definition of insanity.
Pepper then moved for a second evaluation to be performed by someone of his choosing. The
trial court overruled that motion. It also found Pepper competent to stand trial. Pepper
subsequently entered a negotiated guilty plea to one count of murder rather than aggravated
murder. The trial court imposed a mandatory prison sentence of fifteen years to life. This appeal
followed.
{¶ 4} In his first assignment of error, Pepper challenges the trial court’s denial of his
motion for a second psychological examination. In support, he relies on R.C. 2945.371, which
provides:
(A) If the issue of a defendant’s competence to stand trial is raised or if a
defendant enters a plea of not guilty by reason of insanity, the court may order one
or more evaluations of the defendant’s present mental condition or, in the case of a
plea of not guilty by reason of insanity, of the defendant’s mental condition at the
time of the offense charged. An examiner shall conduct the evaluation.
[Cite as State v. Pepper, 2014-Ohio-3841.]
(B) If the court orders more than one evaluation under division (A) of this section,
the prosecutor and the defendant may recommend to the court an examiner whom
each prefers to perform one of the evaluations. If a defendant enters a plea of not
guilty by reason of insanity and if the court does not designate an examiner
recommended by the defendant, the court shall inform the defendant that the
defendant may have independent expert evaluation and that, if the defendant is
unable to obtain independent expert evaluation, it will be obtained for the
defendant at public expense if the defendant is indigent.
(Emphasis added) R.C. 2945.371(A) and (B).
{¶ 5} Pepper argues that his sanity was “at issue” because the evaluation the trial court
ordered addressed both his competence to stand trial and his sanity at the time of the offense.
Under these circumstances, Pepper claims the trial court erred in denying his request for an
additional evaluation. He insists that R.C. 2945.371(B) gave him a right to an independent expert
evaluation.
{¶ 6} Upon review, we find Pepper’s argument unpersuasive for at least three reasons.
First, we see nothing in R.C. 2945.371 that compelled the trial court to order a second
psychological examination. Section (B) of the statute only applies when “more than one
evaluation” is ordered, or, alternatively when an NGRI plea is entered. Only one evaluation was
ordered and Pepper never entered an NGRI plea. Because only one evaluation was ordered and
because Pepper did not enter a NGRI plea, the language in R.C. 2945.371(B) upon which he
relies had no applicability. Second, his guilty plea constituted an implied admission of sanity, and
the trial court’s acceptance of the plea was an affirmation of its belief in Pepper’s sanity. State v.
Fore, 18 Ohio App. 2d 264, 248 N.E.2d 633 (4th Dist. 1969). Third, with regard to Pepper’s
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competence to stand trial, “issues of competency as they relate to a defense to criminal charges
are waived by a plea of guilty.” State v. Denton, 2d Dist. Montgomery No. 11376, 1989 WL
159195 (Dec. 29, 1989). “Pleas of guilty or nolo contendere waive all issues of fact and allow the
court to go forward on the basis of the record, resting on the presumption of competence created
by the law.” Id. For the foregoing reasons, Pepper’s first assignment of error is overruled.
{¶ 7} In his second assignment of error, Pepper alleges ineffective assistance of
counsel based on his attorney’s failure to file a written NGRI plea. He reasons that if such a plea
had been entered, R.C. 2945.371(B) would have compelled the trial court to grant his request for
a second, independent psychological evaluation. In connection with this assignment of error, he
also suggests that his attorney provided ineffective assistance by not challenging the reports from
the psychological evaluation that was performed.
{¶ 8} Once again, we find Pepper’s argument unpersuasive for at least three reasons.
First, as set forth above, he did undergo a psychological evaluation to assess his competence and
sanity. The expert reports prepared by psychologist Scott Kidd unequivocally found that Pepper
was competent to stand trial and sane at the time of the offense. Pepper has not identified any
particular basis on which to challenge those reports. In light of that evidence, we cannot say
defense counsel provided ineffective assistance by failing to pursue an NGRI plea. Cf. State v.
Purcell, 107 Ohio App. 3d 501, 506, 669 N.E.2d 60, 64 (1st Dist. 1995) (“The findings of the
experts retained or appointed in this case uniformly indicate that appellant * * * was not insane
according to Ohio law. We cannot say that trial counsel was ineffective in failing to pursue a
defense of not guilty by reason of insanity where that defense was not supported by expert
testimony.”); State v. Anaya, 191 Ohio App. 3d 602, 2010-Ohio-6045, 947 N.E.2d 212, ¶ 34 (6th
Dist.) (“In circumstances that indicate that entering a plea of not guilty by reason of insanity
5
would be unsuccessful, appointed counsel’s decision not to enter that plea is not unreasonable.”).
Second, Pepper cannot establish prejudice resulting from counsel’s failure to file an NGRI plea.
Based on the record before us, we see no reasonable probability that such a plea would have
prevailed at trial. Third, Pepper’s guilty plea waived his ability to raise this particular
ineffective-assistance argument. We have recognized that “[a] plea of guilty waives any claim
that the accused was prejudiced by ineffective assistance of trial counsel, except to the extent that
the ineffectiveness alleged may have caused the guilty plea to be less than knowing, intelligent,
and voluntary.” State v. Stivender, 2d Dist. Montgomery No. 23973, 2011-Ohio-247, ¶ 15. We
are unpersuaded that the lack of an NGRI plea caused the guilty plea that Pepper entered to be
less than knowing, intelligent, and voluntary. See State v. Wilson, 8th Dist. Cuyahoga No.
83413, 2004-Ohio-4079, ¶ 4 (“Appellant does not claim that his plea was not knowing or
voluntary. Instead, he claims that his attorney should have requested a psychological evaluation
and entered a plea of not guilty by reason of insanity on his behalf. Appellant’s admission of guilt
has waived this argument.”) Our review of the plea-hearing transcript reflects that Pepper’s guilty
plea was knowing, intelligent, and voluntary. For the foregoing reasons, his second assignment of
error is overruled.
{¶ 9} The trial court’s judgment is affirmed.
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FROELICH, P.J., and FAIN, J., concur.
Copies mailed to:
Anthony E. Kendell
Janna L. Parker
Rebekah S. Neuherz
Donald R. Pepper
Hon. Christopher Gee