[Cite as State v. Purdy, 2022-Ohio-1131.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-21-16
v.
CHARLES M. PURDY, II, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2021-CR-0055
Judgment Affirmed
Date of Decision: April 4, 2022
APPEARANCES:
James F. Hearn for Appellant
Laia Zink for Appellee Case No. 2-21-16
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Charles M. Purdy, II (“Purdy”), appeals the July
20, 2021 judgment entry of sentence of the Auglaize County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} On March 18, 2021, the Auglaize County Grand Jury indicted Purdy on
fourteen counts of pandering obscenity involving a minor in violation of R.C.
2907.321(A)(5), fourth-degree felonies. On March 23, 2021, Purdy appeared for
arraignment and entered pleas of not guilty.
{¶3} On July 19, 2021, Purdy withdrew his pleas of not guilty and entered
pleas of guilty, under a negotiated-plea agreement, to the counts of the indictment.
In exchange for his change of pleas, the State agreed to a joint-sentencing
recommendation. The trial court accepted Purdy’s guilty pleas, found him guilty,
and sentenced Purdy to 18 months in prison on Counts One through Eight and 12
months in prison on Counts Nine through Fourteen.1 (Doc. No. 43). The trial court
ordered that Purdy serve the prison terms for Counts One through Eight
consecutively. (Id.). Further, the prison terms imposed as to Counts Nine through
Fourteen were ordered to be served concurrently to the consecutive prison-terms
imposed as to Counts One through Eight, for an aggregate sentence of 144 months
in prison (one-year less than the joint-sentencing recommendation of the parties).
1 The trial court filed its judgment entry of conviction and sentence on July 20, 2021. (Doc. No.43).
-2- Case No. 2-21-16
(Id.); (July 19, 2021 Tr. at 43). The trial court also classified Purdy as a Tier II sex
offender.
{¶4} On August 31, 2021, Purdy filed a motion for a delayed appeal, which
this court granted on September 10, 2021. (See also Doc. No. 66). He raises two
assignment of error for our review.
Assignment of Error No. I
The Trial Court erred when it failed to order a competency evaluation of the Defendant prior to his change of plea.
{¶5} In his first assignment of error, Purdy argues that the trial court erred
by failing to sua sponte order a competency evaluation prior to accepting his guilty
pleas. Specifically, Purdy contends that the trial court had a duty to sua sponte order
a competency evaluation because it was disclosed on the record that he suffered a
traumatic-brain injury during his military service in Afghanistan.
Standard of Review
{¶6} “Because it is left to the discretion of the trial court, we review a trial
court’s decision to order a competency hearing for an abuse of discretion.” State v.
Swoveland, 3d Dist. Van Wert No. 15-17-14, 2018-Ohio-2875, ¶ 28, citing State v.
Shepherd, 3d Dist. Wyandot No. 16-09-03, 2009-Ohio-3317, ¶ 9 and State v.
Prophet, 10th Dist. Franklin No. 14AP-875, 2015-Ohio-4997, ¶ 14, citing State v.
Smith, 89 Ohio St.3d 323, 330 (1990). An abuse of discretion suggests that a
decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio
-3- Case No. 2-21-16
St.2d 151, 157-158 (1980). “‘When reviewing the trial court’s decision on whether
to conduct a competency hearing sua sponte, an appellate court should give
deference to the trial court since it was able to see and hear what transpired in the
courtroom.’” Swoveland at ¶ 28, quoting Shepherd at ¶ 9, citing Smith at 330.
Analysis
{¶7} “In addition to the requirement that a defendant’s guilty plea be
knowing, intelligent, and voluntary, a trial court must satisfy itself that a defendant
who seeks to plead guilty is competent.” Id. at ¶ 25. “‘A defendant is presumed
competent to stand trial, and the burden is on the defendant to prove by a
preponderance of the evidence that he is not competent.’” Id., quoting Prophet at ¶
13, citing State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶ 28, State v.
Scurlock, 2d Dist. Clark No. 2002-CA-34, 2003-Ohio-1052, ¶ 77, and R.C.
2945.37(G).
In a criminal action in a court of common pleas, * * * the court, prosecutor, or defense may raise the issue of the defendant’s competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court’s own motion.
R.C. 2945.37(B). “In assessing whether to order such a hearing, the trial court
should consider ‘“(1) doubts expressed by counsel as to the defendant’s
competence, (2) evidence of irrational behavior, (3) the defendant’s demeanor at
-4- Case No. 2-21-16
trial, and (4) prior medical opinion relating to competence to stand trial.”’”
Swoveland at ¶ 26, quoting State v. Hartman, 174 Ohio App.3d 244, 2007-Ohio-
6555, ¶ 16 (3d Dist.), quoting State v. Rubenstein, 40 Ohio App.3d 57, 60-61 (8th
Dist.1987).
{¶8} “‘The constitutional standard for assessing a defendant’s competency
to enter a guilty plea is the same as that for determining his competency to stand
trial.’” Id. at ¶ 27, quoting State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, ¶ 56, reconsideration granted in part on other grounds, 147 Ohio St.3d 1438,
2016-Ohio-7677, citing Godinez v. Moran, 509 U.S. 389, 398-399, 113 S.Ct. 2680
(1993). “‘The defendant must have a “‘sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding’ and [have] ‘a rational as
well as factual understanding of the proceedings against him.’”’” Id., quoting
Montgomery at ¶ 56, quoting Godinez at 396, quoting Dusky v. United States, 362
U.S. 402, 80 S.Ct. 788 (1960).
{¶9} In this case, there is no dispute that Purdy’s competency was not raised
prior to the change-of-plea hearing. Rather, Purdy contends that the trial court
abused its discretion by failing to sua sponte order a hearing regarding his
competency based on the evidence revealed at the change-of-plea hearing that he
suffered a traumatic-brain injury during his military service in Afghanistan.
Particularly, Purdy contends that the record contains sufficient indicia of
-5- Case No. 2-21-16
incompetence based on his exchange with the trial court during which he informed
the trial court that he was unable “to pass a physical for a nursing degree” as a result
of his brain injury. (Appellant’s Brief at 9).
{¶10} “It is now well established, however, that having a mental illness or
taking medications to treat a mental illness, does not equate with a finding of legal
incompetency.” Prophet, 2015-Ohio-4997, ¶ 21, citing State v. Berry, 72 Ohio St.3d
354, 362 (1995), State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 71, State
v. Bock, 28 Ohio St.3d 108, 110 (1986), and R.C. 2945.37(F). See also State v.
Whitling, 12th Dist. No. CA2016-10-202, 2018-Ohio-1360, ¶ 42 (Piper, J.,
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[Cite as State v. Purdy, 2022-Ohio-1131.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-21-16
v.
CHARLES M. PURDY, II, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2021-CR-0055
Judgment Affirmed
Date of Decision: April 4, 2022
APPEARANCES:
James F. Hearn for Appellant
Laia Zink for Appellee Case No. 2-21-16
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Charles M. Purdy, II (“Purdy”), appeals the July
20, 2021 judgment entry of sentence of the Auglaize County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} On March 18, 2021, the Auglaize County Grand Jury indicted Purdy on
fourteen counts of pandering obscenity involving a minor in violation of R.C.
2907.321(A)(5), fourth-degree felonies. On March 23, 2021, Purdy appeared for
arraignment and entered pleas of not guilty.
{¶3} On July 19, 2021, Purdy withdrew his pleas of not guilty and entered
pleas of guilty, under a negotiated-plea agreement, to the counts of the indictment.
In exchange for his change of pleas, the State agreed to a joint-sentencing
recommendation. The trial court accepted Purdy’s guilty pleas, found him guilty,
and sentenced Purdy to 18 months in prison on Counts One through Eight and 12
months in prison on Counts Nine through Fourteen.1 (Doc. No. 43). The trial court
ordered that Purdy serve the prison terms for Counts One through Eight
consecutively. (Id.). Further, the prison terms imposed as to Counts Nine through
Fourteen were ordered to be served concurrently to the consecutive prison-terms
imposed as to Counts One through Eight, for an aggregate sentence of 144 months
in prison (one-year less than the joint-sentencing recommendation of the parties).
1 The trial court filed its judgment entry of conviction and sentence on July 20, 2021. (Doc. No.43).
-2- Case No. 2-21-16
(Id.); (July 19, 2021 Tr. at 43). The trial court also classified Purdy as a Tier II sex
offender.
{¶4} On August 31, 2021, Purdy filed a motion for a delayed appeal, which
this court granted on September 10, 2021. (See also Doc. No. 66). He raises two
assignment of error for our review.
Assignment of Error No. I
The Trial Court erred when it failed to order a competency evaluation of the Defendant prior to his change of plea.
{¶5} In his first assignment of error, Purdy argues that the trial court erred
by failing to sua sponte order a competency evaluation prior to accepting his guilty
pleas. Specifically, Purdy contends that the trial court had a duty to sua sponte order
a competency evaluation because it was disclosed on the record that he suffered a
traumatic-brain injury during his military service in Afghanistan.
Standard of Review
{¶6} “Because it is left to the discretion of the trial court, we review a trial
court’s decision to order a competency hearing for an abuse of discretion.” State v.
Swoveland, 3d Dist. Van Wert No. 15-17-14, 2018-Ohio-2875, ¶ 28, citing State v.
Shepherd, 3d Dist. Wyandot No. 16-09-03, 2009-Ohio-3317, ¶ 9 and State v.
Prophet, 10th Dist. Franklin No. 14AP-875, 2015-Ohio-4997, ¶ 14, citing State v.
Smith, 89 Ohio St.3d 323, 330 (1990). An abuse of discretion suggests that a
decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio
-3- Case No. 2-21-16
St.2d 151, 157-158 (1980). “‘When reviewing the trial court’s decision on whether
to conduct a competency hearing sua sponte, an appellate court should give
deference to the trial court since it was able to see and hear what transpired in the
courtroom.’” Swoveland at ¶ 28, quoting Shepherd at ¶ 9, citing Smith at 330.
Analysis
{¶7} “In addition to the requirement that a defendant’s guilty plea be
knowing, intelligent, and voluntary, a trial court must satisfy itself that a defendant
who seeks to plead guilty is competent.” Id. at ¶ 25. “‘A defendant is presumed
competent to stand trial, and the burden is on the defendant to prove by a
preponderance of the evidence that he is not competent.’” Id., quoting Prophet at ¶
13, citing State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶ 28, State v.
Scurlock, 2d Dist. Clark No. 2002-CA-34, 2003-Ohio-1052, ¶ 77, and R.C.
2945.37(G).
In a criminal action in a court of common pleas, * * * the court, prosecutor, or defense may raise the issue of the defendant’s competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court’s own motion.
R.C. 2945.37(B). “In assessing whether to order such a hearing, the trial court
should consider ‘“(1) doubts expressed by counsel as to the defendant’s
competence, (2) evidence of irrational behavior, (3) the defendant’s demeanor at
-4- Case No. 2-21-16
trial, and (4) prior medical opinion relating to competence to stand trial.”’”
Swoveland at ¶ 26, quoting State v. Hartman, 174 Ohio App.3d 244, 2007-Ohio-
6555, ¶ 16 (3d Dist.), quoting State v. Rubenstein, 40 Ohio App.3d 57, 60-61 (8th
Dist.1987).
{¶8} “‘The constitutional standard for assessing a defendant’s competency
to enter a guilty plea is the same as that for determining his competency to stand
trial.’” Id. at ¶ 27, quoting State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, ¶ 56, reconsideration granted in part on other grounds, 147 Ohio St.3d 1438,
2016-Ohio-7677, citing Godinez v. Moran, 509 U.S. 389, 398-399, 113 S.Ct. 2680
(1993). “‘The defendant must have a “‘sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding’ and [have] ‘a rational as
well as factual understanding of the proceedings against him.’”’” Id., quoting
Montgomery at ¶ 56, quoting Godinez at 396, quoting Dusky v. United States, 362
U.S. 402, 80 S.Ct. 788 (1960).
{¶9} In this case, there is no dispute that Purdy’s competency was not raised
prior to the change-of-plea hearing. Rather, Purdy contends that the trial court
abused its discretion by failing to sua sponte order a hearing regarding his
competency based on the evidence revealed at the change-of-plea hearing that he
suffered a traumatic-brain injury during his military service in Afghanistan.
Particularly, Purdy contends that the record contains sufficient indicia of
-5- Case No. 2-21-16
incompetence based on his exchange with the trial court during which he informed
the trial court that he was unable “to pass a physical for a nursing degree” as a result
of his brain injury. (Appellant’s Brief at 9).
{¶10} “It is now well established, however, that having a mental illness or
taking medications to treat a mental illness, does not equate with a finding of legal
incompetency.” Prophet, 2015-Ohio-4997, ¶ 21, citing State v. Berry, 72 Ohio St.3d
354, 362 (1995), State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 71, State
v. Bock, 28 Ohio St.3d 108, 110 (1986), and R.C. 2945.37(F). See also State v.
Whitling, 12th Dist. No. CA2016-10-202, 2018-Ohio-1360, ¶ 42 (Piper, J.,
dissenting) (acknowledging that “[p]ast brain injury has been determined to be
insufficient indicia of incompetency and the failure to hold a hearing was
harmless”), citing Eley v. Bagley, 604 F.3d 958, 966-967 (6th Cir.2010).
{¶11} Based on our review of the record, the trial court did not act
unreasonably, arbitrarily, or unconscionably by failing to sua sponte order a hearing
regarding Purdy’s competency because there is insufficient indicia of incompetence.
Accord Swoveland, 2018-Ohio-2875, at ¶ 31. Indeed, there is no evidence in the
record that Purdy behaved irrationally in the courtroom or that there is a prior
medical opinion relating to Purdy’s competency to stand trial. See id. Furthermore,
neither Purdy’s trial counsel nor Purdy expressed doubts as to his competence.
Importantly, the record reflects that the trial court conducted a further exchange with
-6- Case No. 2-21-16
Purdy regarding his brain injury during which the trial court concluded that the brain
injury did not impact Purdy’s competency. Specifically, during that exchange,
Purdy informed the trial court that he did not “believe” that his brain injury “is to
blame for” his conduct and that he “did not try to plea [sic] insanity or anything.”
(July 19, 2021 Tr. at 41-42).
{¶12} Moreover, beyond the factors that the trial court should consider when
determining whether to order a competency hearing, there is no evidence in the
record that Purdy was incompetent. That is, there is no evidence in the record
reflecting that Purdy did not have a sufficient present ability to consult with his trial
attorney with a reasonable degree of rational understanding and no evidence that
Purdy did not have a rational and factual understanding of the proceedings against
him. Accord Swoveland at ¶ 34, citing State v. Ferguson, 2d Dist. Montgomery No.
27325, 2018-Ohio-987, ¶ 18, citing State v. Neyland, 139 Ohio St.3d 353, 2014-
Ohio-1914, ¶ 32, citing Berry at 359 and Dusky, 362 U.S. at 402.
{¶13} Specifically, during the change-of-plea hearing, Purdy appropriately
responded to the trial court’s colloquy. See Prophet, 2015-Ohio-4997, at ¶ 19, citing
State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, ¶ 38. In particular, Purdy
declared that he understood the nature of the charges against him; that he had an
opportunity to review and discuss those charges with his trial counsel; that he was
satisfied with his trial counsel’s representation; and that he was not under the
-7- Case No. 2-21-16
influence of drugs or alcohol. Likewise, Purdy executed the negotiated-plea
agreement reflecting the same. Accord Swoveland at ¶ 35, citing Shepherd, 2009-
Ohio-3317, at ¶ 12.
{¶14} For these reasons, we conclude that the trial court did not abuse its
discretion by failing to sua sponte order a hearing regarding Purdy’s competency.
{¶15} Thus, Purdy’s first assignment of error is overruled.
Assignment of Error No. II
Defendant was provided ineffective assistance of counsel when Defendant’s attorney failed to request a competency evaluation prior to plea change, or any sort of expert evaluation prior to sentencing.
{¶16} In his second assignment of error, Purdy argues that his trial counsel
was ineffective for failing to request a hearing regarding his competency.
{¶17} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984). To establish prejudice when ineffective assistance of
counsel relates to a guilty plea, a defendant must show there is a reasonable
probability that but for counsel’s deficient or unreasonable performance the
defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992),
-8- Case No. 2-21-16
citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Strickland, 466 U.S.
at 687.
{¶18} Based on our conclusion in Purdy’s first assignment of error, we reject
Purdy’s ineffective-assistance-of-counsel argument. That is, Purdy cannot show
that his trial counsel’s performance was deficient or unreasonable under the
circumstances because, as we concluded under Purdy’s first assignment of error,
there is insufficient indicia in the record demonstrating that the trial court should
have ordered a competency hearing or that Purdy was incompetent.
{¶19} Therefore, Purdy’s second assignment of error is overruled.
{¶20} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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