[Cite as State v. Bradley, 2013-Ohio-5146.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13 COA 13 MICHAEL H. BRADLEY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 13 CRB 306
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MATTHEW J. MALONE LAW OFFICES OF MATTHEW J. MALONE 11-1/2 East Second Street Ashland, Ohio 44805 Ashland County, Case No. 13 COA 13 2
Wise, J.
{¶1} Appellant Michael H. Bradley appeals his sentence entered in the Ashland
County Court of Common Pleas on one count of Domestic Violence, in violation of R.C.
§2919.25(A).
{¶2} Appellee State of Ohio did not file a response brief in this matter.
STATEMENT OF THE FACTS AND CASE
{¶3} On March 10, 2010, the Ashland Police Department served a Summons
and Complaint on Defendant-Appellant Michael H. Bradley, charging him with one count
of domestic violence, pursuant to R.C. §2919.25(A), a misdemeanor of the first degree.
{¶4} The Complaint alleged:
{¶5} “The undersigned issuing officer says that the person whose name
appears above did on the 10th day of March, 2013 at 3:30 PM unlawfully and knowingly
cause or attempt to cause physical harm to a family member or household member to
wit: Mr. Michael Bradley poked his father with a baseball bat and struck his mother in
the left arm after a verbal altercation.” (Complaint and Summons, filed March 11, 2013.)
{¶6} At his March 11, 2013 arraignment, Appellant appeared unrepresented by
counsel and entered a plea of no contest to the charge contained in the Summons and
Complaint. (Arraign. T. at 5). After a brief colloquy with Appellant, the trial court
accepted his no contest plea, found him guilty of domestic violence, and ordered a pre-
sentence investigation. (Arraign. T. at 5-10, 14).
{¶7} On April 23, 2013, Appellant appeared for sentencing, again without
counsel. (Sent. T. at 1). The trial court sentenced Appellant to 180 days in the Ashland
County Jail, suspended 150 days while giving credit for time served, placed him on County County, Case No. 3
intensive probation for one year, and ordered him to pay a fine of $150 plus court costs.
(Sent. T. at 13-14).
{¶8} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶9} “I. THE ASHLAND, OHIO MUNICIPAL COURT ERRED BY NOT
INQUIRING WHETHER DEFENDANT-APPELLANT WAS ABLE TO OBTAIN
COUNSEL AND THEN IMPOSING A SENTENCE OF CONFINEMENT FOR HIS
UNCOUNSELED NO CONTEST PLEA.
{¶10} “II. THE ASHLAND, OHIO MUNICIPAL COURT ERRED BY NOT
MAKING FURTHER INQUIRY INTO DEFENDANT-APPELLANT'S COMPETENCE
WHERE THERE EXISTED SUFFICIENT INDICIA OF INCOMPETENCE TO ENTER A
PLEA AND THEN BY ACCEPTING DEFENDANT-APPELLANT'S UNCOUNSELED NO
CONTEST PLEA.”
II.
{¶11} For ease of discussion, we shall address Appellant’s assignments of error
out of order.
{¶12} In his Second Assignment of Error, Appellant argues that the trial court
erred in not making further inquiry into his competence before accepting his no contest
plea made without legal representation.
{¶13} The conviction of a defendant who is not competent to enter a plea
violates due process of law. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-
6391, 819 N.E.2d 215, at ¶ 155, citing Drope v. Missouri (1975), 420 U.S. 162, 171, 95
S.Ct. 896, 43 L.Ed.2d 103, and State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 County County, Case No. 4
N.E.2d 433. A trial court possesses no need to sua sponte inquire into a defendant's
competency unless the record contains “ ‘sufficient indicia of incompetence,’ such that
an inquiry * * * is necessary to ensure the defendant's right to a fair trial.” Berry, 72 Ohio
St.3d at 359, quoting Drope, 420 U.S. at 175; see, also, State v. Ahmed, 103 Ohio St.3d
27, 2004-Ohio-4190, 813 N.E.2d 637, at ¶ 65.However, in the absence of evidence to
the contrary, a criminal defendant is rebuttably presumed competent to enter a guilty
plea. See R.C. 2945.37(G); State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890
N.E.2d 263, at ¶ 45
{¶14} Pursuant to R.C. 2945.37(G), a defendant is presumed competent to
stand trial unless it is proved by a preponderance of the evidence in a hearing that
because of his present mental condition, he is incapable of understanding the nature
and objective of the proceedings against him or of assisting in his defense. “The test for
competency is whether the defendant has a sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding and whether he has a
rational as well as factual understanding of proceedings against him.” In re Kristopher
F., Stark App. No. 2006CA00312, 2007–Ohio–3259, ¶ 25.
{¶15} During Appellant’s arraignment, it was explained to the trial court that the
events leading up to the domestic violence charge were brought on by Appellant’s
failure to take his medication and the parents’ efforts to try to make him take such
medication. A review of the transcript from the arraignment reveals over a dozen
references made regarding Appellant’s failure to take his medication, his mental health,
and the fact that he suffers from schizophrenia. County County, Case No. 5
{¶16} Further, the transcript from the sentencing hearing reveals that the
sentencing hearing had to be postponed due to the fact that Appellant was receiving
treatment in Heartland Behavioral Healthcare center for 40 days. (Sent. T. at 5).
Additionally, much discussion was had regarding Appellant’s mental health, his need for
medication, which would include monthly injections of Haldol, the need for weekly
counseling and monthly psychiatric treatment. (Sent. T. at 7-9) It was also discussed
that Appellant takes Depakote for mood stabilization and Cogentin for the side effects.
(Sent. T. at 10).
{¶17} Based on the record before us, we find there are sufficient indicia of
incompetency to warrant a hearing on the issue of incompetency. “It is settled law that
‘a person whose mental condition is such that he 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.’ ” State v. Rubenstein, 40 Ohio
App.3d 57, 60, 531 N.E.2d 732 (8th Dist.1987), quoting Drope v. Missouri, 420 U.S.
162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
{¶18} Appellant’s Second Assignment of Error is sustained.
I.
{¶19} In his First Assignment of Error, Appellant asserts the trial court violated
his Constitutional right to counsel as well his rights under Crim.R. 11 and 44.
Specifically, Appellant submits the trial court violated his rights by failing to appoint an
attorney for him or having him voluntarily, intelligently, and knowingly waive such right;
by accepting his plea without undertaking a Crim.R. 11 colloquy; and by failing to inquire County County, Case No. 6
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[Cite as State v. Bradley, 2013-Ohio-5146.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13 COA 13 MICHAEL H. BRADLEY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 13 CRB 306
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MATTHEW J. MALONE LAW OFFICES OF MATTHEW J. MALONE 11-1/2 East Second Street Ashland, Ohio 44805 Ashland County, Case No. 13 COA 13 2
Wise, J.
{¶1} Appellant Michael H. Bradley appeals his sentence entered in the Ashland
County Court of Common Pleas on one count of Domestic Violence, in violation of R.C.
§2919.25(A).
{¶2} Appellee State of Ohio did not file a response brief in this matter.
STATEMENT OF THE FACTS AND CASE
{¶3} On March 10, 2010, the Ashland Police Department served a Summons
and Complaint on Defendant-Appellant Michael H. Bradley, charging him with one count
of domestic violence, pursuant to R.C. §2919.25(A), a misdemeanor of the first degree.
{¶4} The Complaint alleged:
{¶5} “The undersigned issuing officer says that the person whose name
appears above did on the 10th day of March, 2013 at 3:30 PM unlawfully and knowingly
cause or attempt to cause physical harm to a family member or household member to
wit: Mr. Michael Bradley poked his father with a baseball bat and struck his mother in
the left arm after a verbal altercation.” (Complaint and Summons, filed March 11, 2013.)
{¶6} At his March 11, 2013 arraignment, Appellant appeared unrepresented by
counsel and entered a plea of no contest to the charge contained in the Summons and
Complaint. (Arraign. T. at 5). After a brief colloquy with Appellant, the trial court
accepted his no contest plea, found him guilty of domestic violence, and ordered a pre-
sentence investigation. (Arraign. T. at 5-10, 14).
{¶7} On April 23, 2013, Appellant appeared for sentencing, again without
counsel. (Sent. T. at 1). The trial court sentenced Appellant to 180 days in the Ashland
County Jail, suspended 150 days while giving credit for time served, placed him on County County, Case No. 3
intensive probation for one year, and ordered him to pay a fine of $150 plus court costs.
(Sent. T. at 13-14).
{¶8} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶9} “I. THE ASHLAND, OHIO MUNICIPAL COURT ERRED BY NOT
INQUIRING WHETHER DEFENDANT-APPELLANT WAS ABLE TO OBTAIN
COUNSEL AND THEN IMPOSING A SENTENCE OF CONFINEMENT FOR HIS
UNCOUNSELED NO CONTEST PLEA.
{¶10} “II. THE ASHLAND, OHIO MUNICIPAL COURT ERRED BY NOT
MAKING FURTHER INQUIRY INTO DEFENDANT-APPELLANT'S COMPETENCE
WHERE THERE EXISTED SUFFICIENT INDICIA OF INCOMPETENCE TO ENTER A
PLEA AND THEN BY ACCEPTING DEFENDANT-APPELLANT'S UNCOUNSELED NO
CONTEST PLEA.”
II.
{¶11} For ease of discussion, we shall address Appellant’s assignments of error
out of order.
{¶12} In his Second Assignment of Error, Appellant argues that the trial court
erred in not making further inquiry into his competence before accepting his no contest
plea made without legal representation.
{¶13} The conviction of a defendant who is not competent to enter a plea
violates due process of law. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-
6391, 819 N.E.2d 215, at ¶ 155, citing Drope v. Missouri (1975), 420 U.S. 162, 171, 95
S.Ct. 896, 43 L.Ed.2d 103, and State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 County County, Case No. 4
N.E.2d 433. A trial court possesses no need to sua sponte inquire into a defendant's
competency unless the record contains “ ‘sufficient indicia of incompetence,’ such that
an inquiry * * * is necessary to ensure the defendant's right to a fair trial.” Berry, 72 Ohio
St.3d at 359, quoting Drope, 420 U.S. at 175; see, also, State v. Ahmed, 103 Ohio St.3d
27, 2004-Ohio-4190, 813 N.E.2d 637, at ¶ 65.However, in the absence of evidence to
the contrary, a criminal defendant is rebuttably presumed competent to enter a guilty
plea. See R.C. 2945.37(G); State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890
N.E.2d 263, at ¶ 45
{¶14} Pursuant to R.C. 2945.37(G), a defendant is presumed competent to
stand trial unless it is proved by a preponderance of the evidence in a hearing that
because of his present mental condition, he is incapable of understanding the nature
and objective of the proceedings against him or of assisting in his defense. “The test for
competency is whether the defendant has a sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding and whether he has a
rational as well as factual understanding of proceedings against him.” In re Kristopher
F., Stark App. No. 2006CA00312, 2007–Ohio–3259, ¶ 25.
{¶15} During Appellant’s arraignment, it was explained to the trial court that the
events leading up to the domestic violence charge were brought on by Appellant’s
failure to take his medication and the parents’ efforts to try to make him take such
medication. A review of the transcript from the arraignment reveals over a dozen
references made regarding Appellant’s failure to take his medication, his mental health,
and the fact that he suffers from schizophrenia. County County, Case No. 5
{¶16} Further, the transcript from the sentencing hearing reveals that the
sentencing hearing had to be postponed due to the fact that Appellant was receiving
treatment in Heartland Behavioral Healthcare center for 40 days. (Sent. T. at 5).
Additionally, much discussion was had regarding Appellant’s mental health, his need for
medication, which would include monthly injections of Haldol, the need for weekly
counseling and monthly psychiatric treatment. (Sent. T. at 7-9) It was also discussed
that Appellant takes Depakote for mood stabilization and Cogentin for the side effects.
(Sent. T. at 10).
{¶17} Based on the record before us, we find there are sufficient indicia of
incompetency to warrant a hearing on the issue of incompetency. “It is settled law that
‘a person whose mental condition is such that he 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.’ ” State v. Rubenstein, 40 Ohio
App.3d 57, 60, 531 N.E.2d 732 (8th Dist.1987), quoting Drope v. Missouri, 420 U.S.
162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
{¶18} Appellant’s Second Assignment of Error is sustained.
I.
{¶19} In his First Assignment of Error, Appellant asserts the trial court violated
his Constitutional right to counsel as well his rights under Crim.R. 11 and 44.
Specifically, Appellant submits the trial court violated his rights by failing to appoint an
attorney for him or having him voluntarily, intelligently, and knowingly waive such right;
by accepting his plea without undertaking a Crim.R. 11 colloquy; and by failing to inquire County County, Case No. 6
and determine whether Rouse's plea was voluntarily, intelligently, and knowingly
entered.
{¶20} Crim. R.11 governs pleas and a defendant's rights upon entering a plea as
follows:
{¶21} “(A) Pleas
{¶22} “A defendant may plead not guilty, not guilty by reason of insanity, guilty
or, with the consent of the court, no contest. A plea of not guilty by reason of insanity
shall be made in writing by either the defendant or the defendant's attorney. All other
pleas may be made orally. The pleas of not guilty and not guilty by reason of insanity
may be joined. If a defendant refuses to plead, the court shall enter a plea of not guilty
on behalf of the defendant.
{¶23} “* * *
{¶24} “(D) Misdemeanor cases involving serious offenses
{¶25} “In misdemeanor cases involving serious offenses the court may refuse to
accept a plea of guilty or no contest, and shall not accept such plea without first
addressing the defendant personally and informing the defendant of the effect of the
pleas of guilty, no contest, and not guilty and determining that the defendant is making
the plea voluntarily. Where the defendant is unrepresented by counsel the court shall
not accept a plea of guilty or no contest unless the defendant, after being readvised that
he or she has the right to be represented by retained counsel, or pursuant to Crim.R. 44
by appointed counsel, waives this right.
{¶26} “(E) Misdemeanor cases involving petty offenses County County, Case No. 7
{¶27} “In misdemeanor cases involving petty offenses the court may refuse to
accept a plea of guilty or no contest, and shall not accept such pleas without first
informing the defendant of the effect of the plea of guilty, no contest, and not guilty.” Id.
{¶28} Crim.R. 2(D) defines a “petty offense” as: “a misdemeanor other than a
serious offense.” “Serious offense” is defined as “any felony, and any misdemeanor for
which the penalty prescribed by law includes confinement for more than six months.”
Crim.R. 2(C).
{¶29} The offense of domestic violence as charged against Appellant is a first
degree misdemeanor for which the penalty prescribed by law does not include
confinement for more than six months. Thus, the trial court was required to follow the
procedure set forth in Crim.R. 11(E).
{¶30} A review of the record reveals that the trial court did not inquire of the
Appellant whether he was able to obtain counsel, and if he was unable, whether he
waived the right to appointed counsel.
{¶31} Based on the foregoing, we find Appellant’s First Assignment of Error well-
taken and sustain same. County County, Case No. 8
{¶32} For the foregoing reasons, the decision of the Municipal Court of Ashland
County, Ohio, is reversed and this matter is remanded for further proceedings
consistent with the law and this opinion.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
_________________________________ HON. JOHN W. WISE
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. CRAIG R. BALDWIN
JWW/d 11/04 Ashland County, Case No. 13 COA 13 9
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MICHAEL H. BRADLEY : : Defendant-Appellant : Case No. 13 COA 13
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Ashland County, Ohio, is reversed and remanded for
further proceedings consistent with this opinion.
Costs assessed to Appellee.
___________________________________ HON. JOHN W. WISE
___________________________________ HON. W. SCOTT GWIN
___________________________________ HON. CRAIG R. BALDWIN