State v. Edwards

2023 Ohio 4173, 229 N.E.3d 642

Opinion

[Cite as State v. Edwards, 2023-Ohio-4173.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2023-03-013

: OPINION - vs - 11/20/2023 :

LEON EDWARDS, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2022 CR 789

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.

Joshua R. Crousey, for appellant.

M. POWELL, J.

{¶ 1} Appellant, Leon Edwards, appeals his conviction in the Clermont County

Court of Common Pleas following his guilty plea to aggravated assault and aggravated

menacing.

{¶ 2} Appellant has suffered from mental health problems since he was 14 years

old. On August 18, 2022, appellant called law enforcement for transportation to a

psychiatric facility because he was experiencing a mental health episode and was feeling Clermont CA2023-03-013

unstable and suicidal. At the time, appellant had been unable to obtain his prescribed

medications. Appellant was initially transported to Fairfield Hospital and then transferred to

the Clermont Mercy Hospital Behavioral Unit. On August 19, 2022, while at Clermont Mercy

Hospital, appellant became disorderly. The record indicates that he had not been given

any medications since his admission to the hospital the day before. As security officers

sought to contain appellant, a struggle ensued during which appellant sat on one of the

security officers and broke the officer's ankle. Appellant laughed, then told the other

security officer, "his leg broke; I'm going to break yours next."

{¶ 3} Appellant was indicted on one count of felonious assault and one count of

aggravated menacing. On January 24, 2023, appellant entered a guilty plea to a reduced

charge of aggravated assault and to one count of aggravated menacing. During the plea

hearing, the trial court engaged in a discussion with appellant about the several prescribed

medications he was taking and had taken that day, and whether appellant felt the

medications affected his ability to understand the proceedings. Appellant advised the trial

court that the medications were bringing him clarity and calmness and that they helped him

better understand the proceedings. In response to the trial court's inquiry, trial counsel

advised the court that he had interacted with appellant personally and privately both on the

day of the plea hearing and on prior occasions and that he had no concerns about

appellant's ability to understand the proceedings.

{¶ 4} For the record, the trial court stated that appellant was standing attentively at

the podium, was making direct eye contact, and conversed responsively. The court noted

it had observed nothing suggesting appellant was impaired and that it was apparent

appellant fully understood the proceedings. The trial court then engaged appellant in a full

Crim.R. 11 plea colloquy. The state provided the trial court with a statement of facts to

which appellant took no issue. The trial court accepted appellant's guilty plea.

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{¶ 5} A sentencing hearing was held on February 16, 2023. Defense counsel

informed the trial court that appellant was a very mentally ill man who needs a lot of

medication to function well, that he has become better at managing his mental health

issues, and that he was currently engaged in the Hamilton County mental health court

program. Appellant took responsibility for his actions, telling the court that he does not

normally hurt people and that he was sorry the officer was injured. In sentencing appellant,

the trial court noted appellant's lengthy juvenile and criminal record as well as his volatile

and violent behavior while confined in the county jail pending trial. Appellant's record

included several offenses of violence and three separate convictions stemming from

appellant's disruptive and belligerent behavior in a hospital setting where he was seeking

treatment. The trial court stated, "I don't doubt for a second that [appellant] has mental

health issues, and * * * that those issues contribute to his behavior," but determined that

appellant was a violent individual who was a danger both to himself and the public. The

trial court sentenced appellant to a 15-month prison term.

{¶ 6} Appellant now appeals, raising two assignments of error.

{¶ 7} Assignment of Error No. 1:

{¶ 8} FAILURE OF APPELLANT'S COUNSEL TO REFER APPELLANT FOR A

PSYCHIATRIC EVALUATION AS TO HIS COMPETENCY TO ENTER A PLEA OR HIS

SANITY AT THE TIME OF THE UNDERLYING OFFENSE AND COUNSEL'S FAILURE TO

ENTER A PLEA OF NOT GUILTY BY REASON OF INSANITY CONSTITUTED

INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 9} Appellant argues that his trial counsel was ineffective because he failed to

challenge appellant's competency to participate in the proceedings, enter a not guilty by

reason of insanity ("NGRI") plea on his behalf, and request both a competency evaluation

and an evaluation of his sanity at the time of the assault. In support of his argument,

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appellant cites his long history of mental illness, the fact he committed the offenses while in

a psychiatric unit, and the fact he was engaged in a mental health court program and on

several psychotropic medications at the time of his plea and sentencing.

{¶ 10} "To prevail on an ineffective assistance of counsel claim in the context of a

guilty plea, the defendant must show that (1) his counsel's performance was deficient and

(2) there is a reasonable probability that, but for counsel's errors, the defendant would not

have pled guilty." State v. Arledge, 12th Dist. Clinton No. CA2018-12-024, 2019-Ohio-3147,

¶ 8, citing State v. Bird, 81 Ohio St.3d 582, 585, 1998-Ohio-606. The failure to make an

adequate showing on either prong is fatal to a claim of ineffective assistance of counsel.

State v. Leonicio, 12th Dist. Butler No. CA2022-08-077, 2023-Ohio-2433, ¶ 24.

{¶ 11} Competency refers to a defendant's mental condition at the time of trial or

plea, whereas the insanity defense refers to the defendant's mental condition at the time of

the offense. State v. Walker, 6th Dist. Lucas Nos. L-22-1032 and L-22-1033, 2023-Ohio-

140, ¶ 20. Generally, a trial counsel's failure to seek a competency evaluation or pursue

an insanity defense is not, per se, ineffective assistance of counsel. State v. Brewer, 12th

Dist. Brown No. CA2020-11-008, 2021-Ohio-2289, ¶ 12. It is only where the facts and

circumstances indicate appellant did not understand the nature and objective of the

proceedings and was incapable of assisting in his defense or otherwise indicate that a plea

of not guilty by reason of insanity would have a reasonable probability of success that it is

ineffective assistance of counsel to fail to pursue such a defense strategy. Id.

{¶ 12} "NGRI is an affirmative defense that a defendant must prove by a

preponderance of the evidence." State v. Pack, 12th Dist. Clermont Nos. CA2022-12-087

thru CA2022-12-089, 2023-Ohio-3200, ¶ 15. "A person is 'not guilty by reason of insanity'

relative to a charge of an offense only if the person proves, [by the preponderance of the

evidence], that at the time of the commission of the offense, the person did not know, as a

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result of a severe mental disease or defect, the wrongfulness of the person's acts." R.C.

2901.01(A)(14) and 2901.05(A).

{¶ 13} Where facts and circumstances indicate that an NGRI plea would have had a

reasonable probability of success, it is ineffective assistance of counsel to fail to enter the

plea. Walker, 2023-Ohio-140 at ¶ 30. Where, however, facts indicate that counsel was

pursuing a reasonable strategy in failing to so plead, or where the likelihood of success for

the plea is low, counsel's actions will not be determined to be unreasonable. Id.

{¶ 14} While the record reflects that appellant suffers from chronic mental illness and

was confined to a psychiatric facility at the time of the offenses, it does not show that he

was unable to understand the difference between right and wrong. It is not enough that

appellant had long-standing mental health issues. Rather, he must demonstrate that his

mental illness somehow caused him to be unaware that it was wrong to assault the security

officer and engage in menacing. Walker at ¶ 33. Here, there is no evidence to that effect.

Id. Appellant has an extensive juvenile and criminal record and several of his prior offenses

involved violence. Appellant was also engaged in volatile and violent behavior while

confined in the county jail pending trial. Thus, the record plainly suggests that appellant's

conduct in committing the aggravated assault offense was not the product of insanity but of

his propensity to engage in violent conduct. That is, being prone to violence does not

equate to an inability to appreciate that such conduct is wrong. Accordingly, appellant

cannot show that trial counsel was deficient for failing to enter an NGRI plea on his behalf.

Additionally, appellant cannot show prejudice because there is no evidence in the record

that had counsel pursued a NGRI plea, appellant would have been found not guilty. For

the same reasons, trial counsel was not deficient for not requesting an NGRI evaluation.

An attorney is not ineffective for failing to do a futile act or make a frivolous request. Pack,

2023-Ohio-3200 at ¶ 17.

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{¶ 15} Trial counsel's failure to request an NGRI evaluation and enter an NGRI plea

on behalf of appellant did not, therefore, constitute ineffective assistance of counsel.

{¶ 16} "[T]he standard for competency is different, in that it relates to the defendant's

present mental condition and his ability to understand the nature of the proceedings against

him and to assist his counsel in his defense." Id. at ¶ 16; R.C. 2945.36(G). A defendant is

rebuttably presumed competent to stand trial or plead guilty when he "has sufficient present

ability to consult with his lawyer with a reasonable degree of rational understanding [and]

has a rational as well as factual understanding of the proceedings against him." State v.

Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566, ¶ 48-49. The burden of rebutting the

presumption and establishing incompetency by a preponderance of the evidence is upon

the defendant. State v. Lampley, 12th Dist. Butler No. CA2011-03-046, 2011-Ohio-6349, ¶

10. Trial counsel is not ineffective for failing to request a competency evaluation when the

defendant does not display sufficient indicia of incompetency to warrant a competency

hearing. Lawson at ¶ 95.

{¶ 17} Upon reviewing the record, we find there is nothing to suggest that appellant

was incompetent to participate in the proceedings or plead guilty. Appellant did not display

any indicia of incompetency to warrant a competency hearing, and neither trial counsel nor

the prosecutor expressed concerns on the record regarding appellant's competency.

Rather, based on trial counsel's representations and the trial court's dialogue with appellant

at the plea hearing and at sentencing, the record shows that appellant was capable of

understanding the nature and objective of the proceedings against him, capable of assisting

his defense, and capable of making an informed, voluntary, and intelligent decision to enter

a guilty plea.

{¶ 18} Appellant points to no "indicia of incompetency," other than his chronic mental

illness, the fact he committed the offenses while in a psychiatric unit, and the fact he was

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engaged in a mental health court program and on several psychotropic medications at the

time of his plea and sentencing.

{¶ 19} However, "[i]ncompetency must not be equated with mere mental or

emotional instability or even with outright insanity. A defendant may be emotionally

disturbed or even psychotic and still be capable of understanding the charges against him

and of assisting his counsel." State v. Bock, 28 Ohio St.3d 108, 110 (1986). "The test for

competency focuses entirely on the defendant's ability to understand the meaning of the

proceedings against him and his ability to assist in his own defense, which can be satisfied

regardless of the defendant's mental status or IQ." Walker, 2023-Ohio-140 at ¶ 23. In other

words, appellant's mental illness, without more, did not trigger a duty by defense counsel to

request a competency evaluation. Id.

{¶ 20} Furthermore, the fact that a defendant is taking prescribed psychotropic

medications does not negate his competency to stand trial or plead guilty. Lawson, 2021-

Ohio-3566 at ¶ 59. The trial court adequately inquired about appellant's psychotropic

medications; trial counsel, who knew appellant was taking several medications, had no

concerns about appellant's competency; and appellant advised the trial court the prescribed

medications did not negatively affect but rather helped his understanding of the

proceedings.

{¶ 21} As appellant did not display sufficient indicia of incompetency to warrant a

competency evaluation or hearing, trial counsel was not ineffective in failing to challenge

appellant's competency or request a competency evaluation.

{¶ 22} Appellant's first assignment of error is overruled.

{¶ 23} Assignment of Error No. 2:

{¶ 24} THE APPELLANT'S PLEA WAS NOT A VOLUNTARY AND KNOWING PLEA

IN VIOLATION OF THE APPELLANT'S DUE PROCESS RIGHTS UNDER THE FIFTH

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AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION.

{¶ 25} Appellant argues that his guilty plea was not knowingly, intelligently, and

voluntarily made because he was not competent during the proceedings below and trial

counsel did not advise him of his right to enter an NGRI plea, despite his extensive

psychiatric history. Appellant asserts that "[a]bsent from the record is any indication that

Appellant's counsel advised Appellant that such a plea could or should be entered or even

considered."

{¶ 26} A guilty plea that is not knowing, intelligent, and voluntary violates the Ohio

and United States Constitutions. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179,

citing Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582 (1927). It is the trial

court's duty, therefore, to ensure that a defendant "has a full understanding of what the plea

connotes and of its consequence." Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709

(1969).

{¶ 27} To ensure that a defendant's guilty plea is knowingly, intelligently, and

voluntarily made, the trial court must engage the defendant in a plea colloquy pursuant to

Crim.R. 11(C). Leonicio, 2023-Ohio-2433 at ¶ 33. Specifically, the "trial court must inform

the defendant that he is waiving his privilege against compulsory self-incrimination, his right

to jury trial, his right to confront his accusers, and his right of compulsory process of

witnesses." State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, ¶ 41; Crim.R.

11(C)(2)(c). In addition to these constitutional rights, the trial court must determine that the

defendant understands the nature of the charge, the maximum penalty involved, and the

effect of the plea. Id.; Crim.R. 11(C)(2)(a) and (b). A plea may be involuntary if "the accused

does not understand the nature of the constitutional protections he is waiving * * * or

because he has such an incomplete understanding of the charge that his plea cannot stand

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as an intelligent admission of guilt." Montgomery at ¶ 42.

{¶ 28} Appellant has not specifically identified any problem in the trial court's Crim.R.

11 colloquy and the record reflects that the trial court complied with the requirements of

Crim.R. 11(C) in advising him of the constitutional rights he was waiving and in covering the

other nonconstitutional aspects of his guilty plea.

{¶ 29} Contrary to appellant's assertion, and as we held under the first assignment

of error, the record is devoid of any evidence showing or implying that appellant was

incompetent during the plea hearing. Upon learning appellant was taking medications, the

trial court inquired about them and their impact on appellant. Only after appellant

unequivocally advised the court that his prescribed psychotropic medications brought him

clarity, calmness, and a better understanding of the proceedings, and trial counsel assured

the trial court he had no concerns about appellant's competency did the trial court conduct

the full plea colloquy in compliance with Crim.R. 11. Appellant answered each of the trial

court's questions in a coherent fashion. There is no evidence in the record indicating that

appellant was not in full possession of his faculties at the plea hearing.

{¶ 30} Regarding appellant's assertion there is no indication in the record that trial

counsel advised him of an NGRI plea, we note that nothing in the record shows that trial

counsel did not advise him of his right to enter an NGRI plea. In any event, any evidence

regarding trial counsel's conversation with or plea advice to appellant is outside the record

and inappropriate for a direct appeal. See Leonicio, 2023-Ohio-2433.

{¶ 31} Based upon the record before us, appellant's guilty plea was knowingly,

intelligently, and voluntarily made. Appellant's second assignment of error is overruled.

{¶ 32} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.

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