[Cite as State v. Merryman , 2013-Ohio-4810.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
State of Ohio, : : Plaintiff-Appellee, : Case No. 12CA28 : v. : : Richard Merryman, : : DECISION AND JUDGMENT ENTRY Defendant-Appellant. : : RELEASED: 10/24/13
______________________________________________________________________ APPEARANCES:
Timothy Young, Ohio State Public Defender, and Peter Galyardt, Ohio State Assistant Public Defender, Columbus, Ohio, for Appellant.
Keller Blackburn, Athens County Prosecutor, and Merry M. Saunders, Athens County Assistant Prosecutor, Athens, Ohio, for Appellee.
______________________________________________________________________
HARSHA, J.
{¶1} Appellant Richard Merryman appeals his conviction upon a guilty plea to
one count of kidnapping and two counts of rape. Merryman contends that the trial court
erred when it found him to be competent to stand trial, accepted his guilty plea, denied
his motion to suppress his confession, and imposed separate sentences for offenses
that should have been merged for sentencing under R.C. 2941.25.
{¶2} First Merryman argues the trial court abused its discretion in finding him
competent to stand trial and that error amounted to a violation of his due process rights.
Although everyone who examined Merryman recognized he has some degree of Athens App. No. 12CA28 2
cognitive impairment, one of the experts concluded he was competent to stand trial.
The trial court was free to choose which opinions it found to be more credible, so we
cannot say it abused its discretion in crediting the state's experts over that of the
defense. And because Merryman was deemed competent, requiring him to stand trial
did not violate his right to due process.
{¶3} Merryman also contends his plea of guilty was involuntary because of his
incompetency; and because it accepted an involuntary plea, the court violated his right
of due process. The crux of his argument is based upon the opinions of his experts that
he was incompetent to stand trial. However, we have already determined the trial court
properly found Merryman competent to stand trial in spite of those opinions. It follows
that a voluntariness argument based upon those rejected premises must also fail, ipso
facto.
{¶4} Next Merryman argued the trial court erred when it denied his motion to
suppress his confession. He bases his argument upon his purported lack of ability to
knowingly and voluntarily waive his Miranda rights. However, his efforts at the trial court
level to suppress his statement focused entirely upon Merryman's refusal to sign the
section of the Miranda form addressing his right to counsel and subsequent questioning
by the police officer. Nowhere during the procedure for suppression did Merryman ever
raise the issue of his cognitive impairment. Accordingly, he has forfeited the right to
raise it here. Nor do we sua sponte consider it as plain error.
{¶5} Finally, Merryman challenges the imposition of separate sentences for
what he concludes are allied offenses of similar import, i.e. kidnapping and rape. He
argues every rape includes a kidnapping and there is no evidence he had a separate Athens App. No. 12CA28 3
animus for each crime. Even if we assume it was possible for Merryman to commit both
offenses with the same conduct, we reject his argument because he committed the
offenses with separate states of mind. The kidnapping had the separate purpose of
removing the victim from a hallway into a nearby bathroom in order to avoid detection
during the sexual assault. In light of this separate animus distinct from the desire for
sexual gratification present in the rape, we conclude merger was unnecessary.
I. Background
{¶6} A grand jury issued a three-count indictment against Merryman, charging
him with two counts of rape of minors under the age of thirteen and one count of
kidnapping. Subsequently, Merryman’s counsel filed a motion requesting Merryman be
evaluated for competency to stand trial. The court ordered an evaluation of Merryman
to determine his status and directed Dr. David Malawista to submit a written report
within thirty days. In April 2011 Malawista examined Merryman, determined him to be
competent to stand trial, and submitted his report to the court.
{¶7} At the competency hearing in May of 2011 Merryman’s counsel requested
a continuance so that he could retain his own examiner to evaluate Merryman for
competency. On behalf of defense counsel Dr. Jolie Brams examined Merryman in July
and August of 2011 and issued a report, which concluded that Merryman was not
competent to stand trial.
{¶8} When the competency hearing resumed in February of 2012, the court
heard testimony from Dr. Brams, Dr. Malawista, and Margaret Sterling, who was
employed by the Tri-County Mental Health and Counseling Services. Sterling provided
counseling and assessment services for the Southeastern Ohio Regional Jail where Athens App. No. 12CA28 4
Merryman was incarcerated. Sterling was called to perform a risk evaluation of
Merryman in April of 2011 to determine if he was suicidal and needed psychiatric
hospitalization. Sterling determined that Merryman did not need hospitalization.
Sterling met with Merryman three more times at Merryman’s request, once in May 2011
and twice in November 2011.
{¶9} In May of 2012, the court issued its order finding Merryman competent to
stand trial. Then in June 2012, the trial court held a hearing on Merryman’s motion to
suppress his confession. Merryman sought to have his confession suppressed on the
ground that the officer improperly continued the questioning after he had invoked his
right to have an attorney present. Merryman took the stand and testified at the hearing,
so the trial court had the opportunity to observe Merryman’s demeanor and responses.
{¶10} In August of 2012, Merryman’s counsel filed a motion requesting a second
competency hearing due to alleged difficulties he had with Merryman at the suppression
hearing. Merryman had retained Dr. James Reardon, who determined that he was not
competent to stand trial. Merryman submitted two reports from Dr. Reardon to support
his motion for a second competency hearing. After the trial court denied the motion for
a second hearing, Merryman decided to plead guilty.
{¶11} At the change of plea hearing, the court stated that it had reviewed the
Reardon reports and that it continued to find Merryman competent to stand trial. The
court then proceeded to ask Merryman a series of questions in accordance with Crim.R.
11(C) to ensure that Merryman’s guilty plea was made knowingly, voluntarily, and
intelligently. Merryman responded clearly and affirmatively to each of the court’s
questions. After accepting Merryman’s guilty plea, the court sentenced him to ten years Athens App. No. 12CA28 5
to life on each of the three offenses and ordered that they be served concurrently. This
appeal followed.
II. Assignments of Error
1. The trial court violated Richard Merryman’s right to due process and abused its discretion when it found him competent to stand trial. Fifth and Fourteenth Amendments, United States Constitution; Sections 10 and 16, Article I, Ohio Constitution; R.C. 2945.37.
2. Richard Merryman was deprived of his right to due process when the trial court accepted an unknowing, unintelligent, and involuntary guilty plea. Fourteenth Amendment, United States Constitution; Section 10, Article I, Ohio Constitution; R.C. 2945.37; Crim.R. 11(C).
3. The trial court erred when it denied Richard Merryman’s motion to suppress his confession. Fifth, Sixth, and Fourteenth Amendments, United States Constitution; Sections 10 and 16, Article I, Ohio Constitution.
4. The trial court committed plain error when it imposed separate sentences upon Richard Merryman for offenses that arose from the same conduct, were not committed separately or with a separate animus, and should have been merged for sentencing purposes under R.C. 2941.25. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus; State v. Underwood, 124 Ohio St.3d 265, 2010-Ohio-1, 922 N.E.2d 923, ¶31; Crim.R. 52(B).
III. Competency
{¶12} In his first assignment of error Merryman contends the trial court
violated his right to due process when it found him competent to stand trial. A
criminal defendant is presumed to be competent to stand trial and has the burden
of proving his incompetence by a preponderance of the evidence. R.C.
2945.37(G).
A. Standard of Review
{¶13} A trial court's decision on competency will not be disturbed absent an Athens App. No. 12CA28 6
abuse of discretion. State v. Clark, 71 Ohio St.3d 466, 469, 1994-Ohio-43, 644 N.E.2d
331. An “abuse of discretion” requires more than an error of judgment; it implies the
court's attitude is unreasonable, arbitrary or unconscionable. Id . at 470. Thus, an
appellate court will not disturb the trial court’s competency determination if the record
reveals a rational basis to support the trial court’s findings. See, State v. Williams, 23
Ohio St. 3d 16, 19, 490 N.E.2d 906 (1986); State v. Stewart, 4th Dist. Gallia No.91CA24,
1992 WL 174699 (July 22, 1992).
B. Is Merryman Competent?
{¶14} Due process requires a criminal defendant be competent to stand trial.
State v. Berry, 72 Ohio St.3d 354, 359, 1995-Ohio-310, 650 N.E.2d 433. A person who
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. Stewart, 4th Dist. Gallia No. 91CA24, 1992 WL 174699 (July 22, 1992)
quoting Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
Conviction of an accused while he or she is legally incompetent is a violation of due
process. Id.
{¶15} The United States Supreme Court established the test for competency
and requires the court to determine if an accused “has 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 the proceedings against
him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960).
Ohio has codified the competency test:
A defendant is presumed to be competent to stand trial. If, after a hearing, Athens App. No. 12CA28 7
the court finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.
R.C. 2945.37(G).
{¶16} Under this subjective test, if a defendant is capable of understanding the
nature and objective of the proceedings and assisting in the defense, then the
defendant is competent to stand trial. A defendant with mental illness or intellectual
deficiencies may still be competent to stand trial. “Incompetency 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, 502 N.E.2d 1016, 1019 (1986). Mental retardation, in itself, is not enough to
support a claim of incompetence. State v. Southerland, 10th Dist. Franklin No. 06AP-11,
2007-Ohio-379; State v. Wilder, 6th Dist. Lucas No. L-06-1321, 2007-Ohio-4186; State
v. Beck, 1st Dist. Nos. C-020432, C-020499, C-030062, 2003-Ohio-5838, ¶ 12,
discretionary appeal not allowed, 101 Ohio St.3d 1470, 2004-Ohio-819, 804 N.E.2d 42.
Mentally retarded persons are frequently competent to stand trial. Atkins v. Virginia, 536
U.S. 304, 318, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)(“Mentally retarded persons
frequently know the difference between right and wrong and are competent to stand
trial.”).
{¶17} Based on our review of the competency hearing transcript and the exhibits
submitted, we conclude the record contains evidence of both admissible facts and a Athens App. No. 12CA28 8
logical thought process to support the trial court’s finding of competency. Two expert
witnesses and a fact witness testified. The two experts gave conflicting testimony and
opposite opinions, although both agreed that Merryman was intellectually deficient or
mildly mentally retarded with an attachment disorder that may place him on the autistic
spectrum. The trial court determined that the opinion of Dr. Malawista, who found
Merryman competent, to be more persuasive and credible than the opinion of Dr.
Brams, who concluded that Merryman was incompetent.
{¶18} A review of the record shows that Dr. Malawista had been performing
competency evaluations for thirty-five years and had performed hundreds of
examinations throughout his career. Competency Hearing, Transcript. p. 127. He
interviewed Merryman early in the proceedings in April 2011, for approximately two and
one-half hours, interviewed the jail nursing and corrections staff regarding their
observations of Merryman, and spoke to Merryman’s counsel. Competency Hearing,
Malwista’s Report, Exhibit 3, p.1. He also performed a second evaluation at which he
interviewed Merryman for an additional hour and one-half. Competency Hearing,
Transcript. pp. 132-133. Malawista reviewed voluminous amounts of documentation,
including prior evaluations and psychological assessments, as well as Dr. Brams report.
Malawista’s report noted Merryman’s thought processes were “mildly impoverished and
quite concrete” and that “his thinking was fundamentally logical” and “his expressed
thought were at all time relevant to the ongoing flow of conversation.” Competency
Hearing, Malawista’s Report, Exhibit 3, p.3.
{¶19} In response to Malawista’s inquiries about his education level, Merryman
responded that he had received a high school diploma while he was a patient at a Athens App. No. 12CA28 9
residential sex offender program. He reported receiving mostly A’s and B’s and that
“when things are explained in enough detail, I learn pretty easy.” Malawista concluded
that Merryman “demonstrated that he could read and comprehend fairly complex written
material and do basic math problems.”
{¶20} Malawista was skeptical about Merryman’s claims concerning his poor
memory of events, noting that Merryman would claim not to remember certain things,
but “probing inquiry or later related discussions would show he could and did have and
recall the data being sought.” Malawista noted that Merryman’s “’memory deficits’ were
most pronounced around topics that showed him in an unfavorable light or when he was
trying to impress upon the writer how psychologically impaired he was.” Malawista
Report, Exhibit 3, p.4.
{¶21} Addressing Merryman’s ability to assist counsel, Malawista found that
Merryman had “a sound working relationship with his defense attorney.” Merryman told
Malawista that he trusted his attorney and would have no problems working with him.
Malawista also reported that Merryman was able to fully appreciate and understand the
pending charges and understood that if he were convicted he could spend, at a
minimum, decades in prison. Although at first Merryman denied knowing anything
about the basics of the criminal proceedings, Malawista was able to challenge and
probe Merryman and determine that he possessed the basic knowledge of a criminal
proceeding. Merryman understood the role and neutrality of the judge. He understood
that if he were found guilty at trial he would be sentenced to prison. He knew that he
should not speak to the prosecutor without his attorney present. He understood the role
of a jury and the role of witnesses at trial. Malawista Report, Exhibit 3, p.6. Athens App. No. 12CA28 10
{¶22} Merryman was also able to explain basic trial options and strategies such
as the decision to testify and the possibility of a bench trial. He explained to Malawista
that he believed that his best defense strategy may be to plead not guilty by reason of
insanity given his many years of inpatient psychiatric and psychological treatment.
When asked about the event that led to his arrest, Merryman was initially very guarded.
However, Malawista reported that after careful questioning, Merryman “provided a
reasonable account of the alleged crimes” and indicated he was willing to discuss it with
his defense counsel when asked. Merryman also knew that he was to behave in a
quiet, attentive and polite manner during his trial. Malawista reported that he had no
reason to doubt Merryman’s ability to behave appropriately during trial based on
Merryman’s behavior during the, at times stressful, two and one-half hour interview.
Malawista Report, Exhibit 3, p. 7.
{¶23} Counselor Sterling’s testimony, while not extensive, supports Malawista’s
opinion that Merryman understood the nature of the proceedings against him and had
the capacity to assist in his own defense. Sterling had contact with Merryman on four
different occasions prior to the competency hearing. She spoke to Merryman
approximately one hour during the first meeting and approximately thirty minutes each
of the other three times they met. Sterling testified that Merryman told her he could be in
jail for life, but that he did not believe the charges against him warranted a life sentence
because he had not committed a murder. He was aware of another inmate with similar
charges who received a six-year prison term. Merryman thought a similar sentence
would be appropriate for him. He also informed Sterling he was very anxious about the
competency hearing and needed to be found incompetent so that he could return to his Athens App. No. 12CA28 11
father or placed in a group home. Sterling testified that she thought Merryman could be
mentally retarded, but that she had worked with other mentally retarded individuals and
found that they were able to relate basic facts. Merryman’s responses to her questions
were coherent and responsive. Competency Hearing Transcript. pp. 118-125.
{¶24} Dr. Brams determined that Merryman was incompetent primarily because
he would be unable to assist his attorney with his defense. Brams Report, Exhibit 1, p.
12. Despite her findings, she reported that “Mr. Merryman seems to be able to
understand the general adversarial nature of the proceedings against him, and the roles
and responsibilities of the various individuals involved in the court system.” Brams
Report, Exhibit 1, p. 9.
{¶25} Brams also reported concerns with Merryman’s ability to recall information
from long term memory and believed that this would interfere with his ability to
adequately relate information to his attorney. However, Brams further stated that
Merryman’s memory problems did not extend to matters or experiences that are related
to his oppositional or sexual history. Brams Report, Exhibit 1, p. 11. Based on Brams's
testimony, it would be reasonable for the trial court to conclude that Merryman would
not have difficulty recalling and relating events surrounding his arrest on rape charges
and conveying that information to his counsel.
{¶26} Finally, Brams report shows that Merryman had a basic understanding of
the legal proceedings and that he harbored skepticisms and doubts that are
occasionally shared by other criminal defendants:
This defendant has a basic understanding of the legal system. He understand this is an adversarial setting, that his attorney (although in his view is incompetent to do so) is to be of assistance to him, and that he is Athens App. No. 12CA28 12
facing serious sanctions (although he does not believe that these are valid). He understands that there are concepts such as “discovery,” and was able to speak relatively competently regarding this type of information. He also understands that he is being charged with “rape and kidnapping” and understands what this entails (although he does not agree that these are appropriate charges). Thus from a purely factual standpoint, he has a basic understanding of the proceedings against him.
Brams Report, Exhibit 1, p. 12.
{¶27} The key distinction between Malawista’s and Brams’s opinions is the
extent to which each expert believed Merryman would be able to assist in his defense.
This difference was largely attributed to the marked difference between the manner in
which Merryman presented himself to the experts. For example, when Merryman
explained to Malawista why he thought the rape charge was inappropriate, he
presented a logical and rational analysis of the fact that there was no sexual
intercourse, only oral sex, which Merryman believed constituted gross sexual
imposition, not rape. Competency Hearing Transcript, p. 142. However, when the same
topic was discussed with Brams, Merryman provided her with an incoherent and illogical
rationale that tied a constitutional right to freedom of speech with a freedom of behavior
that would give him the right to commit the charged offenses. Brams Report, Exhibit 1,
p. 10; Competency Hearing Transcript. p. 94, 96-97. Faced with these two markedly
different presentations, the trial court had to make a determination as to which one
presented the more accurate reflection of Merryman's competency.
{¶28} When the trial court asked Brams directly how it was possible to decide
between the two opposite expert opinions, Brams stated that the court should make the
decision based upon the testing data she provided. Competency Hearing, Transcript p.
113. However, the testing data Brams compiled focused on Merryman’s psychological Athens App. No. 12CA28 13
profile and mild intellectual deficiencies. A court’s focus on competency requires an
understanding of the defendant’s present ability to understand the nature and objective
of the proceedings against him and to assist in the defense. Brams did not ask
Merryman about the offense or determine if he could give accurate factual statements
about his behavior as it related to the offense. Competency Hearing Transcript. pp. 61-
63. Thus, it was reasonable for the trial court to give less credibility to Brams’ opinion
and the test data supporting it.
{¶29} Malawista, on the other hand, believed that the differences between his
opinion and Brams could be explained in two ways. First, Malawista explained that
Brams relied more on psychometrics or testing scores to determine competency, while
he relied more extensively on direct interviews with the defendant that focused on his
understanding of the legal system, the charges, and his relationship with his attorney.
Competency Hearing Transcript p. 142 -143. Second, Malawista noted that Merryman
appeared to “look worse over time” as the proceedings moved forward. Malawista
examined Merryman in April 2011 within the first thirty days after his indictment was
issued. Brams interviewed and tested Merryman in July and August 2011. Malawista
testified that Merryman may have developed an appreciation and understanding over
time that it was in his best interest to look bad. Competency Hearing Transcript p. 142-
144. Thus, one plausible explanation for the marked difference in the manner in which
Merryman presented himself to Brams as compared to Malawista was that, as
Merryman gained a better understanding of the competency issue, he tried to influence
the competency determination in his favor.
{¶30} As the trier of fact, the trial court was in the position to determine the Athens App. No. 12CA28 14
credibility of the expert witnesses. The weight to be given the evidence and the
credibility of the witnesses are primarily for the trial court as the trier of fact. State v.
Stewart, 4th Dist. Gallia No.91CA24, 1992 WL 174699 (July 22, 1992) citing State v.
DeHass, 10 Ohio St.2d 230, 227 N.E. 212 (1967). The adequacy of the “data relied
upon by the expert who examined [the defendant] is a question for the trier of fact.” Id.
“Deference on these issues should be given ‘to those who see and hear what goes on
in the courtroom.’” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263
quoting State v. Cowans, 87 Ohio St.3d 68,84, 1999-Ohio-250, 717 N.E.2d 298 (1999).
A trial court is permitted to disagree with an expert’s opinion on competency where the
trial court’s decision is support by evidence in the record and by the court’s own
observations of the defendant. Were, 118 Ohio St. 3d at 456, 2008-Ohio-2762 at ¶52.
{¶31} The trial court's decision shows that the court fully considered the
testimony of both Brams and Malawista, as well as the testimony of Sterling. The trial
court also reviewed the exhibits admitted at the hearings. The trial court found it
significant that Brams did not ask Merryman detailed information about the incident that
formed the basis for his criminal charges and that Merryman made “a vastly different
presentation to Malawista than he did to Brams.” Ultimately, the trial court found that
Malawista’s opinion was the more credible of the two. Thus the trial court found
Merryman competent to stand trial.
{¶32} Merryman argues that Malawista’s opinion should be entirely discredited
based on his statement on cross-examination that, “I don’t know why, I, but I think he’s
competent.” Competency Hearing Transcript, p. 181. We do not give much weight to
this argument. That statement was made in response to a somewhat obscure line of Athens App. No. 12CA28 15
questioning from defense counsel that was directed to elicit an answer from Malawista
that would pin down the exact point in his mental state that Merryman would move out
of the zone of competency and into the zone of incompetency. Malawista testified that
the question was very arbitrary and he had no idea how to answer. Defense counsel
continued to seek a response from Malawista, “Okay, that’s that’s the abstract, but as
Merryman sits here today, how far is he from not being able to do that, based on your
evaluations of him?” Malawista responded in full:
A ways. He, I mean again, I don’t know how to make this any clearer. I don’t think he’s you know, and [sic] ideal client. I don’t think he’s unimpaired. He’s a way before you reach that level. Is it really far, no. Is it just really one little iota of difference, no I don’t think so. But he clearly is impaired. I don’t know why, I, but I think he’s competent.
Competency Hearing Transcript, p. 180-181. Given Malawista’s earlier response that
he had no idea how to answer this line of questioning and his lengthy and credible
testimony on direct examination giving his full and complete reasons for his opinion on
Merryman’s competency, in addition to his written report, we do not find this utterance
makes his ultimate opinion totally lacking in credibility.
{¶33} Merryman also argues that the fact that he was found incompetent in a
juvenile court proceeding in 2005 creates a presumption of incompetence and shifted
the burden to the State to prove competency in an adult proceeding seven years later.
The case cited by Merryman, State v. Finley, 2nd Dist. Clark No. 96-CA-30,
1998WL321017 (June 19, 1998), does not support him. Finley is a case in which the
court held an initial competency hearing and found the defendant incompetent but
capable of being restored to competency within a year. Later, a second competency
hearing occured to determine if the defendant had been restored to competency. The Athens App. No. 12CA28 16
defense counsel asserted that because the court had found Finley incompetent earlier
in the proceedings, there was now a presumption that she was incompetent. After
finding no Ohio law on point, the court reviewed insanity case law and held that the
burden shifted to the State in subsequent hearings.
{¶34} We do not believe that Finley requires a perpetual presumption of
incompetence in all future proceedings. The mere fact that Merryman has been
deemed incompetent to stand trial in the past when he was a juvenile, does not
automatically render him incompetent to stand trial now or create a presumption of
incompetency. Years have passed since Merryman’s first evaluation. And although the
courts have applied R.C. 2945.37 to juvenile cases, they do so in light of juvenile norms
rather than adult norms. In re T.C., 4th Dist. Washington No. 09CA10, 2009-Ohio-4325;
State v. Dollar, 12th Dist. Butler No. CA2012-01-022, 2012-Ohio-5241 (court held that
mildly mental retarded adult defendant who had been found incompetent to stand trial
six different times as a juvenile offender, was not automatically incompetent to stand
trial as an adult and affirmed trial court’s finding of competency).
{¶35} Finally, we do not believe the court abused its discretion in denying
Merryman’s motion for a second competency hearing based upon Merryman’s behavior
at the hearing on his motion to suppress. The trial court had the opportunity to observe
Merryman’s behavior at the suppression hearing. Merryman testified at the hearing, was
subject to cross-examination, and interacted with his counsel. The expert reports
prepared by Dr. Reardon focused, like Dr. Brams, on psychometrics. Where the report
contained excerpts from actual discussions Dr. Reardon had with Merryman, it showed
the Merryman was able to provide responsive, lucid answers concerning the Athens App. No. 12CA28 17
circumstances surrounding his interrogation. For example, when asked about whether
he thought he would have been released had he requested an attorney, Merryman
responded, “They weren’t going to let me leave until I told them what they wanted to
hear from me – I tried to get an attorney but they wasn’t giving me that – I had to do
what they told me to do. I was scared, yeah! That they might beat me up and make me
talk – I just wanted to get out of there.” Reardon Report, July 3, 2012, p. 6. Based upon
the fact that the trial court had an opportunity to observe Merryman’s behavior and had
the benefit of Malawista’s earlier testimony and report, we cannot say that the trial court
abused its discretion in refusing to hold a second competency hearing.
{¶36} We conclude the trial court’s finding of competency was based on
evidence given by the state’s witnesses and consideration of the multiple evaluations.
The record contains a rationale basis to support the trial court’s decision that Merryman
was competent to stand trial. Accordingly, we overrule Merryman’s first assignment of
error.
IV. Merryman's Plea
{¶37} In his second assignment of error, Merryman argues that he did not enter
his guilty pleas voluntarily, knowingly, and intelligently. The basic tenets of due process
require that a guilty plea be made “knowingly, intelligently, and voluntarily.” State v.
Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450 (1996). Failure on any
of these points “renders enforcement of the plea unconstitutional under both the United
States Constitution and the Ohio Constitution.” Id
{¶38} The crux of Merryman’s argument that his pleas were not voluntary is
based on his assertion that he was incompetent to make the plea because Dr. Bram's Athens App. No. 12CA28 18
and Dr. Reardon’s reports find him incompetent to stand trial. However, we have
already concluded that the trial court properly found Merryman competent to stand trial
in spite of expert testimony to the contrary. Therefore, we reject Merryman's underlying
premise that he was not competent to enter a guilty plea. It follows, ipso facto, that his
“voluntariness” argument is meritless.
{¶39} Although Merryman does not specifically contend that the trial court failed
to satisfy the requirements of Crim.R. 11(C)(2), a review of the record indicates that the
trial court properly advised Merryman of the nature of the charges and the maximum
penalty involved, the effect of the plea, as well as all of the rights Merryman was waiving
by pleading guilty. The record indicates that Merryman understood the consequences
of his plea and understood what rights he was waiving. Thus, we cannot say that
Merryman’s plea was anything but knowingly and voluntarily made. We overrule
Merryman’s second assignment of error.
V. Suppression of Custodial Statements
{¶40} In his third assignment of error, Merryman argues that the trial court
should have suppressed his custodial statements to law enforcement because he was
incapable of knowingly and intelligently waiving his Miranda rights. He argues that “he
provided the trial court with Dr. Reardon’s report evidencing [Merryman’s] lack of
cognitive ability to knowingly, voluntarily, and intelligently waive his Miranda rights.” In
the entry denying the motion to suppress, the trial court found that “the Defendant
knowingly and voluntarily waived his Miranda rights. After considering the totality of the
circumstances, the Court further finds that the Defendant knowing and voluntarily gave
the statement to [Officer] Maynard.” Athens App. No. 12CA28 19
{¶41} Our standard of review of a motion to suppress is a familiar one:
When considering an appeal from a trial court's decision on a motion to suppress evidence, we are presented with a mixed question of law and fact. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972; State v. Garrett, Adams App. No. 05CA802, 2005-Ohio-5155, ¶ 8. In a hearing on a motion to suppress, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988, certiorari denied (1996), 516 U.S. 1096, 116 S.Ct. 822, 133 L.Ed.2d 765. Accordingly, we defer to the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583; Garrett, supra. Accepting those facts as true, we must independently determine, without deference to the trial court, whether the trial court reached the correct legal conclusion in applying the facts of the case. State v. Roberts, 110 Ohio St.3d 71, 850 N.E.2d 1168, 2006-Ohio-3665, ¶ 100, citing State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71, 2003-Ohio-5372, ¶ 8; State v. Acord, Ross App. No. 05CA2858, 2006-Ohio1616, ¶ 9. See, generally, United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911.
State v. Ralston, 4th Dist. Ross No. 06CA2898, 2007-Ohio-177, at ¶ 14.
B. Merryman Forfeited Errors on his Motion to Suppress
{¶42} In his motion to suppress, Merryman gave only one reason for
suppressing his confession to the trial court:
The defendant was in custody and told the police that he did not want to give up his right to a lawyer. He told the police that he was not signing the part of the form giving up his right to a lawyer. This was ignored by the police. The police continued with the interrogation process. This violates the defendant’s right to counsel, to remain silent and the right todue process under the Fifth, Sixth, and Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Ohio Constitution. * * * The defendant in this case did not initiate communication with the police after invoking his right to remain silent and his right to counsel, he was not provided with a lawyer and his wavier was not knowing, voluntary or intelligent. Athens App. No. 12CA28 20
Merryman’s entire focus was upon the questioning by Officer Maynard and the
statement Merryman made concerning his refusal to sign a section of the Miranda form.
Nowhere in his motion to suppress, his questioning of witnesses, presentation of
evidence, argument at the suppression hearing, or his post-hearing supplemental
memorandum did Merryman ever raise the issue that he lacked the cognitive ability to
give a valid waiver of his Miranda rights, nor did he present the trial court with Dr.
Reardon’s reports in furtherance of such argument. Before the prosecution shoulders
the burden of proof on the voluntariness of the such a waiver, the defendant must first
state the basis for his motion to suppress, setting forth factual and legal issues with
sufficient clarity to alert the court and prosecutor to the issues at hand. As we explained
in State v. Marcinko, 4th Dist. Washington No. 06CA51, 2007-Ohio-1166, at ¶ 22
(quoting Xenia v. Wallace (1998), 37 Ohio St.3d 216, 218-219, 524 N.E.2d 889):
“The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits. Therefore, the defendant must make clear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search or seizure. Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal.”
{¶43} At no time while the trial court considered the motion to suppress did
Merryman ever put forward any factual basis or argument that his waiver was
involuntary due to his lack of cognitive ability. Having failed to raise the issue in the trial
court, he has forfeited the right to raise it on appeal. Marcinko, at ¶ 23; see also State v. Athens App. No. 12CA28 21
Shindler (1994), 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (“By requiring the defendant to
state with particularity the legal and factual issues to be resolved, the prosecutor and
court are placed on notice of those issues to be heard and decided by the court and, by
omission, those issues which are otherwise being waived.”); State v. VanHoose,4th Dist.
Pike No. 07CA765, 2008-Ohio-1122, at ¶18; State v. Jacobson, 4th Dist. Adams No.
01CA730, 2003-Ohio-1201. State v. Wilson, 9th Dist. Medina No. 02CA0013-M, 2003-
Ohio-540, at ¶ 16 (“Appellant's motion to suppress did not allege that the consent to
search the trunk was not voluntarily given or that the evidence should be suppressed
because the consent for the search of the cooler was given by a person who claimed no
ownership of the cooler. Moreover, these issues were not raised at the suppression
hearing. Therefore, appellant cannot assert them for the first time on appeal.”). Nor will
we sua sponte consider his argument under a plain error standard of review.
{¶44} Merryman relies primarily on evidence presented at his change of plea
hearing for his argument. For instance, he points out that, in Dr. Reardon’s report, which
was submitted as Defendant’s Exhibit B at the change of plea hearing, “Dr. Reardon
explained that Ricky was not cognitively capable of comprehending what was
happening during his exchange with police about his Miranda rights, and simply went
along with what he was told.” However, this evidence from a subsequent proceeding
was not before the trial court during its deliberation on the motion to suppress;
therefore, we cannot use it to review the propriety of that prior ruling. See State v. Davis
(1964), 1 Ohio St.2d 28, 203 N.E.2d 357, syllabus (“Where counsel for an accused
objects to admission of a confession on the specific ground that it was not voluntarily
made and there is no evidence to support a conclusion that it was not voluntarily made, Athens App. No. 12CA28 22
the accused cannot, after trial, successfully maintain that the court erred in overruling
the objection by then relying upon a valid ground for his objection which was not called
to the court's attention at a time when such error could have been avoided and
corrected.”)
{¶45} Finally, Merryman has waived his right to appeal the trial court’s decision
on his motion to suppress. We have overruled Merryman’s second assignment of error
and affirmed the trial court’s determination that Merryman voluntarily and knowingly
changed his plea to guilty. A guilty plea waives all claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea, unless such errors
are shown to have precluded the defendant from voluntarily entering into his or her plea.
State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 78; State v. Storms, 4th
Dist. Athens No. 05CA30, 2006-Ohio-3547, ¶ 9. State v. Jacobson, 4th Dist. Adams No.
01CA730, 2003-Ohio-1201; State v. Benson (Aug. 9, 1995), 4th Dist. Washington No.
94CA36 citing Huber Hts. v. Duty (1985), 27 Ohio App.3d 244, 500 N.E.2d 339. See,
also, State v. Kelley (1991), 57 Ohio St.3d 127, 566 N.E.2d 658, paragraph two of the
syllabus (stating that a guilty plea “waives all appealable errors which may have
occurred * * * unless such errors are shown to have precluded the defendant from
voluntarily entering into his or her plea.”); State v. Gadd, 6th Dist. Ottawa No. OT-08-
053, 2010-Ohio-3072, at ¶ 5. After the trial court complied with Crim.R. 11, Merryman
chose to plead guilty and agreed to a plea bargain, which consisted of his guilty plea in
exchange for the state's recommendation of a sentence of life in prison with a possibility
of parole after ten years on all three charges and to have them all run concurrently.
Because Merryman voluntarily and knowingly pled guilty, he forfeited his right to appeal Athens App. No. 12CA28 23
the trial court’s decision on his motion to suppress. We overrule Merryman’s third
assignment of error.
VI. Imposition of Separate Sentences for Allied Offenses
{¶46} In his fourth assignment of error, Merryman argues that the trial court
erred when it imposed separate sentences for offenses that arose from the same
conduct, were not committed separately or with a separate animus, and should have
been merged for sentencing purposes under R.C. 2941.25. He argues that the
kidnapping offense under R.C. 2905.01(A)(4) should be merged with the rape offense
under R.C. 2907.02(A)(1)(b). Merryman argues the kidnapping and rape were not
committed by separate conduct and there was not a separate animus. Because they
were allied offenses, he argues that the trial court committed plain error by failing to
merge them. The State argues that the kidnapping was separate from the rape in that
the restrain or confinement was secretive and there existed a separate animus as to
each offense sufficient to support separate convictions. We agree with the State and
find that the trial court did not err when it sentenced Merryman separately for rape and
kidnapping.
{¶47} Appellate courts apply a de novo standard of review in reviewing a trial
court’s application of the merger statute, R.C. 2941.25. State v. Williams, 134 Ohio
St.3d 482, 488, 2012-Ohio-5699, ¶¶ 25-28, 983 N.E.2d 1245, 1251. “Appellate courts
apply the law to the facts of individual cases to make a legal determination as to
whether R.C. 2941.25 allows multiple convictions.” Id.
B. Merryman’s Merger Claim Athens App. No. 12CA28 24
{¶48} Merryman entered into a plea agreement and voluntarily plead guilty to
two rape offenses and a kidnapping offense. He also agreed to the sentencing imposed
by the trial court. Sentencing Hearing Transcript, pp. 9 & 16. At no time during the
change of plea hearing or during the sentencing phase did Merryman raise an objection
or argue that the kidnapping and rape charge were allied offenses of similar import and
should have been merged under R.C.2941.25(A). However, the Supreme Court of Ohio
has determined that such failure does not constitute a waiver. State v. Underwood, 124
Ohio St.3d 365, Syllabus 1, 2010-Ohio-1, 922 N.E.2d 923. Where a defendant is
sentenced to a jointly recommended sentence pursuant to a plea agreement and fails to
raise the issue at trial, the failure to merge convictions on allied offenses may be
reviewed for plain error under Crim. R. 52(B). Underwood, 124 Ohio St. 3d at 372; State
v. Creech, 188 Ohio App.3d 513, 523, 2010-Ohio-2553 (4th Dist.).1
{¶49} Plain error exists when the error is plain or obvious and when the error
affects substantial rights. To rise to the level of plain error, it must appear on the face of
the record that an error was committed. State v. Slagle, 65 Ohio St. 3d 597, 605, 605
N.E. 2d 916, 925 (“The appellate court must examine the error asserted by the
defendant-appellant in light of all of the evidence”).
The test for plain error is stringent. A party claiming plain error must show that (1) an error occurred, (2) the error was obvious, and (3) the error affected the outcome of the trial. Moreover, the burden of demonstrating plain error is on the party asserting it.
State v. Davis, 116 Ohio St.3d 404, 455, 2008-Ohio-2, 880 N.E.2d 21, 84,
1 In State v. Rogers, 2013-Ohio-3235 the Eight District has concluded in an en banc decision that the failure of the trial court to address merger when the charges facially present the issue results in plain error. We do not address that issue here. Athens App. No. 12CA28 25
citations omitted (where nothing in the record supported a finding of plain error,
appellant failed to meet his burden). An error affects substantial rights when, but
for the error, the outcome of the proceeding clearly would have been otherwise.
We take notice of plain error with the utmost of caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice. State v.
Creech, 188 Ohio App.3d 513, 523, 2010-Ohio-2553 (4th Dist.).
{¶50} Although neither of the parties nor the court addressed the merger issue,
the record before us contains sufficient evidence for our review. Merryman argues that,
based on his confession to Officer Maynard, he committed the kidnapping for the sole
purpose of facilitating the rape. Merryman-Maynard Transcript, at 33-38. The State
argues that the purpose of Merryman’s kidnapping was to create secrecy so that he
could avoid detection. According to the record, Merryman told Officer Maynard that he
removed the victim from the hallway into the bathroom and then, once in the bathroom,
he moved him into a stall and locked the stall. Merryman claimed he did this because he
did not want anyone else coming in and getting Merryman in trouble. Merryman-
Maynard Transcript, at 33-38.
The statute that addresses merger of allied offenses states:
R.C. 2941.25 Multiple counts
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such Athens App. No. 12CA28 26
offenses, and the defendant may be convicted of all of them.
To determine whether two offenses are allied offenses of similar import subject to
merger, we must determine whether the offenses were committed by the same conduct.
Id. at 162. This involves a two-step process. First, we must consider the conduct of the
accused. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus, 942 N.E.2d
1061. Under R.C. 2941.25(A), the question is whether it is possible to commit one
offense and commit the other with the same conduct. If the offenses correspond to
such a degree that the conduct of the defendant can constitute the commission of both
of the offenses, then the offenses are of similar import. If we determine that the
offenses are of similar import, then we must determine if they were in fact committed by
the same conduct – a single act, committed with a single state of mind. Id. at 163.
{¶51} Here, kidnapping is set forth in R.C. 2905.01(A)(4), which provides:
No person, . . . in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: * * * (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim’s will; . . . .
The relevant rape provision is set forth in R.C. 2907.02(A)(1)(b):
(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: * * * (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
Here Merryman removed the victim from the hallway into the bathroom, then into the
stall, which he locked. After he had the victim in the bathroom stall, he raped the victim. Athens App. No. 12CA28 27
We assume arguendo that the two offenses are of similar import, i.e. that it is possible
to commit both offenses with the same conduct. We now must determine if the two
offenses were in fact committed by the same conduct, i.e. a single act with a single
state of mind.
{¶52} Under certain circumstances rape under R.C 2907.02(A)(1)(b) and
kidnapping under R.C. 2905.01(A)(4) may be allied offenses as defined under the
Johnson, which warns against a court accepting “the invitation of the state to parse
[defendant’s] conduct into a blow-by-blow in order to sustain multiple convictions . . . .”
Johnson, at ¶ 56. But here, we do not have a situation where the State is attempting to
punish Merryman for the kidnapping conduct that resulted from the incidental restraint
that occurred during the rape in the bathroom stall. Moreover, even if we were to
determine that the kidnapping and rape were committed by the same conduct, we find
that the offenses were not committed with a single state of mind, or animus. Johnson,
at ¶ 49; see State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979)(animus is
intended to mean “purpose” or “immediate motive”). In Logan, the Supreme Court of
Ohio set forth guidelines for determining whether kidnapping and another offense
should be merged under R.C. 2941.25:
(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense Athens App. No. 12CA28 28
sufficient to support separate convictions.
Logan, at syllabus (emphasis added). Here, Merryman stated that his motive for the
kidnapping conduct was “cause I didn’t want anybody else coming in.” Merryman-
Maynard Transcript, at 37-38. His motive was to create secrecy – the conduct of
removing the victim from the hallway to the bathroom was to avoid detection. He could
have performed oral sex upon the victim in the hallway but Merryman had a separate
animus for the kidnapping, i.e. he wanted his actions to be secret; this separate animus
supports a separate conviction for kidnapping. See State v. Smith, 7th Dist. Mahoning
No. 11MA120, 2013-Ohio-756 (moving victim from bedroom to the dining room and then
living room and raping her while her two-year old slept in bedroom was seen as
secretive and the trial court did not err when it failed to merge the kidnapping offense
with the rape offense). The trial court did not commit err when it failed to merge the
kidnapping offense with the rape offense. Because there was no error, plain or
otherwise, we overrule Merryman’s fourth assignment of error.
JUDGMENT AFFIRMED. Athens App. No. 12CA28 29
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.