State v. Brown , 2022 Ohio 3683 ( 2022 )

[Cite as State v. Brown, 2022-Ohio-3683.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1220
Appellee Trial Court No. CR0202101316
v.
Jacob Brown DECISION AND JUDGMENT
Appellant Decided: October 14, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
DUHART, J.
{¶ 1} This case is before the court on appeal by appellant, Jacob Brown, from the
judgment issued by the Lucas County Common Pleas Court, sentencing him to thirty
months in prison on one count of attempt to commit felonious assault. For the reasons that
follow, we affirm.
Assignments of Error
1. Appellant did not knowingly, voluntarily and intelligently enter
his plea in violation of the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution and Article One Sections Ten and Sixteen of the
Ohio State Constitution.
2. Appellant was denied effective assistance of trial counsel as
guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth
and Fourteenth Amendments to the United State[s] Constitution when trial
counsel failed to request a competency evaluation prior to his plea hearing.
Background
{¶ 2} On March 4, 2021, appellant was charged by way of indictment with one
count of felonious assault, in violation of R.C. 2903.11(A)(1) and (D). On August 30,
2021, he pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970), to an amended charge of attempt to commit felonious assault, in
violation of R.C. 2923.02 and R.C. 2903.11(A)(1) and (D), a felony of the third degree.
Pursuant to the plea agreement, the state agreed to remain silent at sentencing.
{¶ 3} At the plea hearing, appellant was asked whether he could read, write and
understand the English language, to which he replied “I can read, but I have a hard time
writing.” The trial court then went through the Crim.R. 11 advisements including an
explanation of the nature of the plea and the charge, the possible penalties, the maximum
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penalty, the possibility of post-release control, and the rights appellant was waiving by
pleading guilty. During this exchange, the trial judge told appellant that he could stop her
if he had any questions, and repeatedly asked appellant if he still wished to make the plea.
Each time appellant responded affirmatively. The trial judge specifically stated that she
did not know how she was going to sentence appellant. Appellant was asked if he
believed he was entering the guilty plea to protect himself from higher charges or a
stricter penalty if he went to trial, to which he responded “Yes.” He stated that he was
satisfied with his attorney’s “advice, counsel, and competence” and that no one made any
threats or promises to him to get him to enter the plea. Appellant appropriately
responded to the judge’s questions and continued to affirm his wish to make the plea.
Sentencing was then continued until September 15, 2021.
{¶ 4} Appellant failed to appear at his sentencing hearing, and a capias was issued.
At the request of appellant, the court withdrew the warrant and scheduled a sentencing
hearing for September 22, 2021. For a second time, appellant failed to appear at his
sentencing hearing, and a capias was again issued. Appellant was eventually arrested and
sentencing was held on October 28, 2021.
{¶ 5} At the sentencing hearing, appellant’s attorney addressed the court prior to
sentencing, and stated, inter alia, that his client was “dealing with some pretty significant
mental health issues as well as physical health issues” and that these issues were the
“reasons that he did not come to court.” Appellant’s attorney also informed the court that
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appellant was facing new charges in municipal court for domestic violence and failure to
comply, but that he did not have any felony convictions at the time of sentencing.
{¶ 6} Appellant then communicated with the court directly. Relevant to this
appeal, appellant made the following statements:
I’m very sorry for everything, and I was just so scared after I got out
of the hospital, I didn’t really know what to do.
And I have an abusive baby mama that I will no longer have to deal
with no more, so I won’t be having to deal with not being able to take my
psych medication, she won’t be able to steal it. So when my mom gets me
back in her custody, I can go back to the Zepf Center and go to
programming.
My baby momma beat my wife up and they charged me with DV,
now I’m scared for my life because I don’t know what’s going to happen.
{¶ 7} After these statements, the court sentenced appellant to 30 months in prison
and found that appellant was “not able to pay cost of prosecution and fees based on
certain mental health and intellectual deficits” that appellant’s attorney had pointed out in
a sentencing memorandum. The court also requested a “full mental health evaluation * *
* including determination if he’s suffering from autism” to “make sure that the prison has
access to know the proper placement for safety purposes.”
4.
{¶ 8} After the court issued appellant’s sentence, appellant requested, and was
granted, a chance to speak. Appellant then strenuously objected to his sentence, claiming
that his attorney had assured him he would get “probation” if he signed the plea form,
and that that was “entrapment.” The court reminded him that he failed to appear for
sentencing, that that failure to appear was considered when fashioning a sentence, and
that he would have the ability to have “judicial release looked at.” Appellant asked
whether he would be “available for shock,” to which the court responded that he “could
be” and that he would be screened for it in prison.
{¶ 9} The following exchange then occurred:
THE [APPELLANT]: I was told I would receive probation, or else I
would have boxed this up, done the whole thing. I would rather appeal it
and go back to the F2, bring it back to court, because I feel like I’m being
entrapped. I honestly do.
I’m having a nervous breakdown as I’m standing here. I suffer from
multi-personality disorder.
THE COURT: So let me just say that I will have to make the record
right now that you’re standing here, so that the record will show that you’re
standing here calmly with the proper cognition.
THE [APPELLANT]: I’m trying to be calm right now. I’m just
maintaining.
5.
THE COURT: I understand. I’m going to place it on the record - -
THE [APPELLANT]: I’m very upset.
THE COURT: - - that at this point, you’re calmly delivering this
information. So with regard to the allegations of nervous breakdown, I’m not
seeing those things. * * *
***
THE [APPELLANT]: Is there any way I can get a shorter prison
term? Because that’s three years for not showing up to court.
THE COURT: No, it’s 30 months for the sentence and for the
injuries to the victim. That’s what the sentence is.
THE [APPELLANT]: I didn’t even touch the victim, Your Honor.
He was one of my friends that came to my house after the thing. He’s been
at my house multiple times after that.
I never touched him, I never hurt him, I never did anything to him.
I’m going for almost three years for doing nothing, just for standing there
while Xander beat him up because I didn’t want to get in the middle of
gang activity. He said if I did, I would be killed.
{¶ 10} Appellant then continued to argue that his attorney had told him that
he would get “probation” if he signed the plea form, and additionally stated that
his attorney told him he did not need to sign the plea form. His attorney asserted
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that he had told appellant that community control was an option and that it “looked
pretty good at that point in time” and he adamantly denied telling appellant not to
read the plea agreement. Then, at the end of the sentencing hearing, appellant
verbally attacked his attorney and threatened to “beat the fuck out of [him].”
{¶ 11} Appellant appealed.
First Assignment of Error
{¶ 12} Appellant requests that we vacate his guilty plea on the basis that his plea
was not knowingly, voluntarily, and intelligently made. He also argues that there is a
question of fact, pursuant to Crim.R. 11(C)(2)(b), regarding whether he understood “the
effect of the plea of guilty or no contest,” or alternatively, if he understood that “by
entering the plea he was waiving his right to trial, to confront witnesses, for compulsory
process of obtaining witnesses in his own defense, and to require the state to prove his
guilt beyond a reasonable doubt.” Appellant, through his attorney, did not object at trial,
and thus, we are limited to plain error review.
{¶ 13} “A guilty plea must be made knowingly, intelligently, and voluntarily to be
valid under both the United States and Ohio Constitutions. To ensure that a defendant
enters a plea knowingly, intelligently, and voluntarily, the trial court is required to engage
a defendant in a plea colloquy pursuant to Crim.R. 11.” (Citations omitted.) State v.
Whitman, 2021-Ohio-4510, 182 N.E.3d 506, ¶ 14 (6th Dist.). This rule applies equally to
Alford pleas. See State v. Hopings, 6th Dist. Lucas No. L-18-1038, 2019-Ohio-1486, ¶ 7.
7.
Traditionally, “a defendant is not entitled to have his plea vacated unless he demonstrates
he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R.
11(C).” State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 16. 1
{¶ 14} “In determining whether a plea was knowingly, intelligently, and
voluntarily made, this court ‘examines the totality of the circumstances through a de novo
review of the record to ensure that the trial court complied with constitutional and
procedural safeguards.’” State v. Gumm, 6th Dist. Erie No. E-21-044, 2022-Ohio-2287, ¶
16 quoting State v. Parks, 6th Dist. Lucas No. L-18-1138, 2019-Ohio-2366, ¶ 10.
{¶ 15} Appellant acknowledges that “the court made the appropriate inquiries”
pursuant to Crim.R. 11, but contends that he did not understand his plea and that it was
not intelligently, voluntarily and knowingly entered into. As support, appellant points to
his low level of education, difficulty in writing the English language, mental health
issues, his statements that he was promised probation, and his statements that he had a
problem with access to his medication. Appellant also believes it to be significant that he
was found incompetent to stand trial in another case approximately a month after the
sentencing in this case.
{¶ 16} Initially, we note that any finding of incompetency entered in another case
is not in the record before us, and therefore cannot be considered. See State v. Wallace,
6th Dist. Wood No. WD-11-031, 2012-Ohio-2675, ¶ 15, citing State v. Ishmail, 54 Ohio
1In the criminal plea context, there are two exceptions to the prejudice component that
are not relevant here. Id. at ¶ 14 – 15.
8.
St.2d 402, 405, 377 N.E.2d 500 (1978), at syllabus (“A reviewing court cannot add
matter to the record before it, which was not a part of the trial court's proceedings, and
then decide the appeal on the basis of the new matter.”).
{¶ 17} When determining whether a plea is knowing and voluntary, our focus is
on “whether the dialogue between the court and the defendant demonstrates that the
defendant understood the consequences of his plea.” Dangler at ¶ 12. Here, the record
shows, and appellant concedes, that the trial court complied with the mandates of Crim.R.
11. Further, it appears that appellant understood the consequences of his plea. Appellant
appropriately responded to the court’s questions and repeatedly affirmed he still wished
to maintain his plea. The fact that appellant stated he had difficulty writing the English
language would not have affected appellant’s understanding of the consequences of the
plea. Additionally, as support for his argument that his plea was not knowing and
voluntary, appellant references statements made in a hearing that occurred at his
sentencing hearing almost two months after the plea hearing. These statements do not
provide support for a claim that the plea was not voluntarily, knowingly, and intelligently
made and, in the case of appellant’s statements that he was promised probation, are
contradicted by statements made by both appellant’s attorney and the attorney for the
state.
{¶ 18} Appellant also raises his competency as a basis for overturning his plea.
Although we cannot consider the finding of incompetency entered in a separate case,
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appellant has raised other issues relating to whether he was competent to plea, including
comments regarding his mental health and the fact that the court ordered a full mental
health evaluation. Thus we will consider appellant’s competency in this context
{¶ 19} “The conviction of a defendant who is not competent to enter a plea
violates due process of law.” State v. D-Bey, 8th Dist. Cuyahoga No. 109000, 2021-Ohio-
60, ¶ 39, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶
155. However, a defendant is not incompetent to plead guilty merely because he suffers
from a mental illness or an intellectual disability. State v. McMillan, 2017-Ohio-8872,
100 N.E.3d 1222, ¶ 29 (8th Dist.), citing State v. Calabrese, 8th Dist. Cuyahoga No.
104151, 2017-Ohio-7316, ¶ 16. The competence necessary to enter a guilty plea is the
same as that necessary to stand trial – “[t]he defendant must have ‘sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding’ and
must have ‘a rational as well as factual understanding of the proceedings against him.’”
D-Bey at ¶ 39, quoting State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71
N.E.3d 180, ¶ 56. (Additional citations omitted.)
{¶ 20} We presume a defendant to be competent “unless it is demonstrated by a
preponderance of the evidence that the defendant is incapable of understanding the nature
and objective of the proceedings against him or her or is incapable of assisting in his or
her defense.” D-Bey, at ¶ 40, citing R.C. 2945.37(G). Moreover, we must “give extreme
deference to a trial court's determination that a defendant is competent to knowingly,
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intelligently, and voluntarily enter a guilty plea.” State v. Brown, 10th Dist. Franklin No.
18AP-112, 2018-Ohio-4984, ¶ 8, citing State v. Grant, 10th Dist. Franklin No. 12AP-
650, 2013-Ohio-2981, ¶ 10.
{¶ 21} Here, there is no evidence that, at the time he entered the plea, appellant did
not understand the meaning of the proceedings against him nor is there any evidence that
appellant was unable to assist in his own defense.
{¶ 22} Additionally, the judge, who was a witness to appellant’s behavior at both
the change of plea hearing and the sentencing hearing and thus, was in a superior position
to assess appellant’s competency, found appellant had an understanding of the nature of
the charge, the effect of his plea and the maximum penalty involved. The court also
found that appellant made a knowing, intelligent and voluntary waiver of his rights.2
{¶ 23} For these reasons, we find appellant was competent to enter the plea. We
therefore do not find that appellant has established that his plea was not made voluntarily,
knowingly and intelligently.
{¶ 24} Appellant’s first assignment of error is therefore not well-taken.
2
Appellant points to the fact that the court ordered “a full mental health evaluation” as
evidence that his mental health issues “were sufficiently apparent” to the trial court.
However, the trial court explained that this evaluation was to include a determination as
to whether appellant suffers from autism, and was ordered to “make sure that the prison
has access to know the proper placement for safety purposes.”
11.
Second Assignment of Error
{¶ 25} Appellant contends that his counsel was ineffective for not requesting a
competency evaluation prior to his plea hearing. Appellant points to his statement at
sentencing that he “felt like he was having a nervous breakdown,” as well as his
threatening behavior toward his attorney at sentencing. Appellant also refers to “the
disparity of [his] statements to the victim’s,” his statement that he had been deprived of
his “psych medication,” and his statements that he was promised community control.
{¶ 26} We presume that properly licensed attorneys are competent. State v. Gross,
6th Dist. Lucas No. L-22-1001, 2022-Ohio-2434, ¶ 16. “[I]n order to prevail on an
ineffective assistance of counsel claim, it must be demonstrated both that trial counsel's
performance fell below an objective standard of reasonableness, and that, but for the
established deficiency, the outcome of the case would have been different.” State v.
Brown, 6th Dist. Wood Nos. WD-21-002 and 003, 2021-Ohio-3762, ¶ 22, citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“Because ‘effective assistance’ may involve different approaches or strategies, our
scrutiny of trial counsel's performance ‘must be highly deferential’ with a ‘strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance.’” Whitman, 2021-Ohio-4510, 182 N.E.3d 506, at ¶ 51, quoting State v.
Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
12.
{¶ 27} The statements relied upon by appellant in support of his argument that his
counsel was ineffective for failing to request a competency hearing prior to his plea
hearing occurred at sentencing, after the plea hearing. Therefore, these statements
cannot be the basis for finding ineffective assistance. In addition, as discussed above, we
have not found any evidence that appellant was not competent at the time he entered his
plea. Without such evidence, we cannot find his counsel was ineffective for failing to
request a competency hearing, and further, we cannot find that the outcome would have
been different.
{¶ 28} We therefore find appellant’s second assignment of error not well-taken.
{¶ 29} The judgment of the Lucas County Common Pleas Court is affirmed.
Pursuant to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
13.
State of Ohio
v. Jacob Brown
L-21-1220
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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