State v. Kendall

2025 Ohio 2394

Opinion

[Cite as State v. Kendall, 2025-Ohio-2394.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY

STATE OF OHIO, CASE NO. 17-24-17 PLAINTIFF-APPELLEE,

v.

MARK KENDALL, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court Criminal Division Trial Court No. 24CR000185

Judgment Affirmed

Date of Decision: July 7, 2025

APPEARANCES:

Jim R. Gudgel for Appellant

Michael P. Doyle, Jr. for Appellee Case No. 17-24-17

WALDICK, P.J.

{¶1} Defendant-appellant, Mark Kendall (“Kendall”), brings this appeal

from the December 2, 2024 judgment of the Shelby County Common Pleas Court

sentencing him to 36 months in prison. On appeal, Kendall argues that his sentence

was not clearly and convincingly supported by the record, and that his trial counsel

was ineffective for failing to request a competency evaluation. For the reasons that

follow, we affirm the judgment of the trial court.

Background

{¶2} On August 1, 2024, Kendall was indicted for Burglary in violation of

R.C. 2911.12(A)(2), a second degree felony. Pursuant to a negotiated plea

agreement, Kendall pled guilty to the amended charge of Attempted Burglary in

violation of R.C. 2923.02 and R.C. 2911.12(A)(2), a third degree felony. As part of

the agreement, the parties jointly recommended that Kendall be sentenced to

community control.

{¶3} The jointly recommended sentence was imposed on October 10, 2024.

As part of his community control sanctions, Kendall was required to be accepted

into, and successfully complete treatment at the WORTH Center or another

community-based correctional facility (“CBCF”). Kendall was notified that if he

violated the terms and conditions of his community control, he could face up to 36

months in prison.

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{¶4} On November 13, 2024, Kendall was unsuccessfully terminated from

the WORTH center. The next day, a motion was filed alleging Kendall had violated

his community control.

{¶5} On December 2, 2024, the trial court held a hearing wherein multiple

witnesses provided testimony that Kendall was involved in a fight at the WORTH

Center, which was a no-contact facility. Kendall was found choking another resident

that Kendall had pinned up against a window. Kendall was also punching the man.

In addition, Kendall threatened to kill the man. When an employee attempted to stop

the fight, Kendall did not relent. Due to the physical altercation and Kendall’s failure

to comply with the order to stop, he was unsuccessfully terminated from the

WORTH center.

{¶6} Kendall’s attorney cross-examined the witnesses about the fact that

Kendall had been taking a drug called “Seroquel” for his mental health prior to going

to the WORTH center, but the drug was not permitted at the WORTH center so

Kendall agreed to stop taking it. Kendall had indicated that he actually “preferred

to not have it and would gladly go to the WORTH center and not take it.” (Tr. at

21). Kendall was given the option to substitute the medication, or attend another

CBCF. No evidence was presented regarding how being off the medication would

impact Kendall.

{¶7} Based on the evidence presented, the trial court determined that Kendall

had violated his community control. The trial court proceeded immediately to

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sentencing and imposed a 36-month prison term. A judgment entry memorializing

Kendall’s sentence was filed that same day. It is from this judgment that Kendall

appeals, asserting the following assignments of error for our review.

First Assignment of Error

The trial court’s imposition of a maximum sentence is not clearly and convincingly supported by the record.

Second Assignment of Error

The trial counsel was ineffective in that she did not request a competency evaluation of the Defendant.

{¶8} In his first assignment of error, Kendall argues that his sentence was not

clearly and convincingly supported by the record.

Standard of Review

{¶9} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 2016-Ohio-1002, ¶ 1. Clear and

convincing evidence is that “‘which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.’” Id. at ¶ 22, quoting

Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

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Relevant Authority

{¶10} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 2015-Ohio-4225, ¶ 9 (3d Dist.), quoting State v.

Noble, 2014-Ohio-5485, ¶ 9 (3d Dist.). A sentence imposed within the statutory

range is generally valid so long as the trial court considered the applicable

sentencing policies that apply to every felony sentencing, including those contained

in R.C. 2929.11, and the sentencing factors of 2929.12. See State v. Watts, 2020-

Ohio-5572, ¶ 10 and 14 (3d Dist.); State v. Maggette, 2016-Ohio-5554, ¶ 31 (3d

Dist.).

{¶11} In considering R.C. 2929.11 and 2929.12 as they relate to felony-

sentencing appeals, the Supreme Court of Ohio has further limited appellate review

by holding that “R.C. 2953.08(G)(2)(a) clearly does not provide a basis for an

appellate court to modify or vacate a sentence if it concludes that the record does

not support the sentence under R.C. 2929.11 and 2929.12,” and subdivision (b)

“does not provide a basis for an appellate court to modify or vacate a sentence based

on its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12.” State v. Jones, 2020-Ohio-6729, ¶ 31, 34, 39 (“an appellate court’s

conclusion that the record does not support a sentence under R.C. 2929.11 or

2929.12 is not the equivalent of a conclusion that the sentence is ‘otherwise contrary

to law’ as that term is used in R.C. 2953.08(G)(2)(b)”). Thus, R.C. 2953.08(G)(2)

does not allow “an appellate court to independently weigh the evidence in the record

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and substitute its judgment for that of the trial court concerning the sentence that

best reflects compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42; see also State

v. Bryant, 2022-Ohio-1878, ¶ 22. However, “when a trial court imposes a sentence

based on factors or considerations that are extraneous to those that are permitted by

R.C. 2929.11 and 2929.12, that sentence is contrary to law,” and claims that raise

those “types of issues are therefore reviewable.” Bryant at ¶ 22 (finding the trial

court increased the sentence based on an impermissible consideration).

Analysis

{¶12} Kendall argues that his maximum prison sentence in this case was not

supported by the record. Specifically, he argues that he was not “competent” to be

in the program at the WORTH Center without his prescribed medications.

{¶13} At the outset, we emphasize that there is no actual evidence in the

record to support Kendall’s claim that he was not “competent” to be in the WORTH

program. There is, however, evidence that Kendall committed a violent act while

on community control and that he threatened to kill another resident.

{¶14} In this case, Kendall entered into a negotiated plea agreement that

reduced his second-degree felony to a third-degree felony. He was provided an

opportunity to comply with community control sanctions in lieu of going to prison,

but he violated his community control by committing a violent act and by continuing

to commit that violent act after he was ordered to stop.

{¶15} In its sentencing entry, the trial court stated as follows: -6- Case No. 17-24-17

The Court has considered the record, oral statements, any victim impact statement and presentence report prepared, as well as the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and has balanced the seriousness and recidivism factors of Ohio Revised Code Section 2929.12.

(Doc. No. 96). The trial court’s entry reflects clear consideration of the appropriate

statutes and factors. In addition, the prison term is within the appropriate statutory

range. See R.C. 2929.14.

{¶16} Simply put, Kendall has not produced any evidence or cited to any

compelling legal authority to meet his burden to show that the trial court’s sentence

was clearly and convincingly contrary to law. See State v. Houtz, 2025-Ohio-1008,

¶ 22 (3d Dist.). Therefore, his first assignment of error is overruled.

{¶17} In his second assignment of error, Kendall argues that he received

ineffective assistance of trial counsel. Specifically, he contends that his counsel was

ineffective for failing to request a competency evaluation.

{¶18} To prevail on a claim that counsel was ineffective for failing to seek a

competency evaluation, the defendant “must show that his counsel failed to perform

an adequate investigation of his possible incompetence.” State v. Lawson, 2021-

Ohio-3566, ¶ 101. Counsel will not be found ineffective for failing to request a

competency evaluation “when the defendant does not display sufficient indicia of

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incompetency to warrant a competency hearing.” Id. at ¶ 95. Moreover, to show

prejudice for purposes of a claim of ineffective assistance, the defendant must show

that there is a reasonable probability that an evaluation “ ‘would have revealed that

he was incompetent to stand trial.’ ” Id. at ¶ 104, quoting Alexander v. Dugger, 841

F.2d 371, 375 (11th Cir. 1988).

{¶19} Kendall argues that his trial counsel was ineffective for failing to seek

a competency evaluation in the trial court. He contends that he had previously been

in a psychiatric hospital and that he was on psychiatric medication.

{¶20} Importantly, the Supreme Court of Ohio has clarified

that “[i]ncompetency must not be equated with mere mental or emotional instability

or even with outright insanity” and that “[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).

{¶21} At best, the record reflects that Kendall may have had some mental

health issues. There is no evidence whatsoever to support a finding that Kendall was

incompetent. In fact, “a state may presume that a defendant is competent to be tried

and may require him to prove his incompetence by a preponderance of the

evidence.” State v. Jordan, 2004-Ohio-783, ¶ 28, citing Medina v. California, 505

U.S. 437, 445–446 (1992). A trial counsel is not ineffective for failing to request a

competency evaluation when the defendant does not display “sufficient indicia of -8- Case No. 17-24-17

incompetency to warrant a competency hearing.” State v. Edwards, 2023-Ohio-

4173, ¶ 16 (12th Dist.), citing Lawson, supra, at ¶ 95. As there is no evidentiary

support for Kendall’s claims, his second assignment of error is overruled.

Conclusion

{¶22} Having found no error prejudicial to Kendall in the particulars

assigned and argued, his assignments of error are overruled and the judgment of the

Shelby County Common Pleas Court is affirmed.

MILLER and WILLAMOWSKI, J.J., concur.

/jlm

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignments of error

are overruled and it is the judgment and order of this Court that the judgment of the

trial court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

Juergen A. Waldick, Judge

Mark C. Miller, Judge

John R. Willamowski, Judge

DATED: /jlm

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