State v. Rogan

2022 Ohio 3577

• Court: Ohio Court of Appeals
• Decided: October 7, 2022
• Docket: 2021-CA-34
• Status: Published

Opinion

[Cite as State v. Rogan, 2022-Ohio-3577.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-34 : v. : Trial Court Case No. 2021-CR-90 : BRADLEY ALLEN ROGAN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 7th day of October, 2022.

JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 1717 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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DONOVAN, J. -2-

{¶ 1} Bradley Allen Rogan appeals from his conviction, following his guilty pleas,

of one count of domestic violence, a felony of the third degree, and one count of escape,

a felony of the fifth degree. Rogan asserts that he received ineffective assistance of

counsel based upon defense counsel’s failure to request a competency evaluation. We

will affirm the judgment of the trial court.

{¶ 2} Rogan was indicted on May 3, 2021, on the counts of domestic violence and

escape referenced above, as well as two counts of criminal damaging or endangering

(second-degree misdemeanors), one count of petty theft (a first-degree misdemeanor),

an additional count of domestic violence, one count of tampering with evidence (a third-

degree felony), and one count of possession of counterfeit controlled substances (a first-

degree misdemeanor).

{¶ 3} At a May 19, 2021 scheduling conference, Rogan advised the court that he

had felony charges pending in Union County. At the final pretrial conference on June

22, 2021, the State advised the court that the parties had reached a plea agreement, and

the court scheduled the plea hearing for the following day.

{¶ 4} At the plea hearing, the prosecutor stated the two charges to which Rogan

would plead guilty – one count of domestic violence and escape -- and stated that the

other charges would be dismissed. Rogan told the court that he had been taking

Remeron, Depakote, and Ibuprofen since he had harmed himself in the county jail, or for

roughly one month. He stated that he had attempted suicide and had been admitted to

Twin Valley Behavioral Healthcare for eight days. Defense counsel indicated that he had

spoken to Rogan and jail officials about the incident. When asked if he believed that -3-

competency to stand trial was an issue, defense counsel responded, “No, I have not

experienced that.” Rogan stated that he was satisfied with defense counsel’s

performance.

{¶ 5} Rogan stated that his pending charges in Union County were for failure to

comply with an order or signal of a police officer, a felony of the fourth degree, and

felonious assault, a felony of the second degree. Rogan also stated that he had a

pending charge for driving under suspension in Logan County. Rogan indicated that he

had been on post-release control in Champaign County at the time of the offenses herein

and had been to prison five times.

{¶ 6} After his pleas were accepted, the court asked counsel about Rogan’s mental

health status and whether counsel anticipated filing a sentencing memorandum or

introducing any mental health records or mental health evaluation. Defense counsel

responded, “I will probably be introducing mental health records.” The court advised

defense counsel that “you could probably get a release of information from your client to

release the Twin Valley records,” and it suggested providing extended time before

sentencing in order to obtain those records. The court scheduled sentencing for August

9, 2021.

{¶ 7} On August 4, 2021, defense counsel filed a motion to continue. The motion

stated that Rogan had been ordered to undergo a competency evaluation by the court in

Union County; a copy of the order from that court was attached. The motion also stated

that Rogan had not yet been evaluated, but that the evaluation would “shed light on his

mental health situation and thus be beneficial to the Court in sentencing,” even if Rogan -4-

were ultimately found to be competent. The court granted the motion.

{¶ 8} At the sentencing hearing on September 20, 2021, the court stated that it

had reviewed the presentence investigation report, jail incident reports, and “the forensic

information given by Netcare” in Rogan’s Union County case with regard to competency

and his mental condition at the time of those offenses. Defense counsel then advised

the court that Rogan had asked counsel to make an oral motion to withdraw his guilty

pleas. Counsel further stated that Rogan objected to the court’s obtaining the Netcare

Forensic Center Report, as he did not believe he authorized or signed a release for the

Champaign County court to have access to that information. Defense counsel indicated

that he had not requested the Netcare records, but he acknowledged that he had raised

the issue of mental illness as a possible mitigating factor.

{¶ 9} Defense counsel also advised the court that he had obtained multiple

documents from Twin Valley Behavioral Healthcare, which he had originally planned to

use at sentencing, but that, in his opinion, the summary from the Union County case

“summarized the history better,” and he had then intended to rely on that summary. But

he also wanted the court to be aware of Rogan’s objection to the Union County

information.

{¶ 10} The court asked defense counsel if Rogan’s objection to the Union County

information had to do with “not innocence at this point, but information outside the incident

that could be used against him,” and counsel responded affirmatively. Defense counsel

acknowledged that if the report were excluded, the matter would be “cured,” in which case

he would asked for a continuance to “prepare additional documents to present to the -5-

Court,” but counsel acknowledged that he had copies of the Twin Valley documents in his

possession.

{¶ 11} The court indicated that it had been “the court’s belief and, apparently

erroneous belief,” that defense counsel wanted the court to have the Union County

information. The court stated to Rogan that it could order the parties to disregard any

information in the Netcare report “as if it never existed and just move forward on the Twin

Valley information,” and Rogan indicated his understanding. Upon further discussion of

Rogan’s objection to use of the information without his consent, the court advised Rogan

that it had called Union County to find out when he was going to be evaluated, and “[t]hey

end up sending us both evaluations. I don’t know why they did. And I’m not - - it is

nobody’s fault. It is just how it happened.”

{¶ 12} After Rogan conferred with defense counsel, counsel advised the court that

Rogan was willing to proceed with sentencing and did not object to the use of the Netcare

Forensic Report at sentencing. Counsel clarified that Rogan did not object to the use of

both the NGRI report and the competency report. Rogan advised the court that he had

reviewed both reports and would like the court to consider them. He also stated that he

wanted to withdraw his motion to withdraw his pleas.

{¶ 13} The court proceeded to sentencing. The prosecutor made a statement and

informed that court that, although the victim did not present a victim impact statement,

she had indicated that she would like the court to consider treatment as opposed to

punishment for Rogan. The State requested a concurrent sentence of 36 months for

domestic violence and 10 months for escape. -6-

{¶ 14} Defense counsel “echo[ed] what the victim is asking for here,” requesting

treatment for Rogan’s mental health issue. Counsel also referenced the Twin Valley

documents, which were marked as Exhibit A.

{¶ 15} Defense counsel then stated:

Your Honor, I think by examining the report of Dr. Hrinko, that the

Court obtained from Union County, as well as Defendant’s Exhibit A, there

is clear evidence of mental illness here. And, quite frankly, we had the

discussion earlier about whether to get Dr. Hrinko’s report and allow it to be

presented to the Court. I suggested to Mr. Rogan the only reason I wanted

it presented is because it clearly states that he suffers from a mental illness.

And I think it incapsulates, basically, the gist of everything with him. He’s

had multiple suicide attempts in the jail. He suffers from a whole host of

diagnoses and [has] medications he has to take.

I would suggest to the Court, if the Court turns to the third page of

Defendant’s exhibit A, we can see some of the diagnoses there almost two-

thirds of the way down. It says diagnoses as of May 18, 2021.

Adjustment disorder mixed disturbance emotional condition, post-traumatic

stress disorder, cannabis abuse uncomplicated, bipolar disorder

unspecified, other stimulant abuse uncomplicated, personal history of

traumatic brain injury, problems related to other legal circumstance,

personal history of self-harm, malingerer conscious simulation, and anti-

social personality disorder. -7-

I believe, also, in Dr. Hrinko’s report there was references to - - were

references * * * to additional difficulties that Mr. Rogan suffers.

{¶ 16} Defense counsel suggested that “probation or community control is the way

to deal with these issues. Obviously, Mr. Rogan needs some extensive counseling.”

Defense counsel also stated that substance abuse counseling would be helpful.

Defense counsel offered to “come back [in order to] better address this in the form of

community control enabling him to get the help that he needs rather than simply going to

a state institution and allowing these issues to linger until he gets out at a later date. * * *”

{¶ 17} The court paused the proceedings to review Exhibit A. The court advised

Rogan that it appreciated “the questions you had at the start of this hearing as to how we

got the Netcare information.”

{¶ 18} At sentencing, the trial court said that it had considered the PSI but was “not

relying” on the Netcare information for sentencing purposes. The court acknowledged

that it would not be conducting the sentencing hearing if Netcare had found Rogan

incompetent to stand trial, but insofar as it did find him competent, the court found that

the Netcare information was not relevant and that Exhibit A (the Twin Valley records) was

“a little more thorough for our purposes.” Similarly, in its judgment entry, the trial court

stated that the Netcare evaluation had only been considered to evaluate whether there

was a competency issue, and that, “[d]ue to the availability of the Twin Valley Behavioral

Healthcare Records, and the Defendant’s concerns regarding release of the Netcare

Evaluations to this Court, the Court elected not to utilize the specific information contained

therein for sentencing purposes.” -8-

{¶ 19} The trial court found Rogan guilty of domestic violence and escape pursuant

to his pleas. It imposed a sentence of 36 months for domestic violence and 12 months

for escape, to be served concurrently. The court also imposed fines and court costs.

{¶ 20} Rogan raises one assignment of error on appeal:

TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO

REQUEST A COMPETENCY EVALUATION OF DEFENDANT-

APPELLANT AT ANY POINT DURING THE PROCEEDINGS.

{¶ 21} Rogan asserts that counsel was ineffective in not requesting a competency

or not guilty by reason of insanity evaluation “[e]ven though [his] mental state was clearly

of a questionable nature throughout the entire duration of these proceedings.” He points

out that his counsel in his Union County case had believed that his mental status was

“questionable enough” to request such evaluations.

{¶ 22} According to Rogan, trial counsel’s reliance on the competency evaluation

that was completed in the Union County proceedings and on medical records from the

psychiatric facility to which he was admitted when he attempted suicide while in the county

jail presented “copious, uncontested information” about mental health and ability to

understand, such that trial counsel “clearly fell below the ‘wide range of reasonable

professional assistance’ when he failed to request a competency evaluation” prior to

Rogan’s plea.

{¶ 23} Anticipating that the State would argue that this Court should not consider

this issue since the Union County evaluation concluded that he was competent, Rogan

argues that a different doctor might have come to a different conclusion. He also points -9-

out that the trial court recognized that he had “previously responded very well when he

[was] under constant watch and care of medical professionals” and that such supervision

“would be the most beneficial” to Hogan. However, the court further found that it did not

have the resources or the programming to order that type of supervision for someone on

community control, such that incarceration was really the only option. Rogan argues that

if he had been evaluated and found incompetent, then under R.C. 2945.38, he “would

have been ordered into the exact type of treatment that the Court found was favorable”

but that it could not provide through community control sanctions. Finally, Rogan asserts

that the severity of his mental health issues should overcome the presumption that trial

counsel’s failure to request a competency evaluation was sound trial strategy.

{¶ 24} The State responds that defense counsel was an experienced and

competent attorney and that his request for a continuance reflected that he believed that

the content of the Union County evaluations might “help in mitigation at sentencing” but

did not support a finding that Rogan was incompetent or insane at the time of the offense

or of the plea. According to the State, “the record does not reflect that the trial court

noted any observation of instances of mental incompetency from the behavior or

statements of [Rogan] at hearings,” and if it had, it could have held a hearing on the issue

on its own motion. The State asserts that there was little evidence in the record of

Rogan’s “legal incompetence, which encompasses an understanding of the nature and

objective of the proceedings against him and being capable of assisting in his defense,

or even evidence of his insanity at the time of the offense.” (Emphasis sic.) The State

also argues that Rogan’s assertion that another evaluator may have reached a different -10-

conclusion was purely speculative and that Rogan did not “point to any particular basis

on which to challenge the substance of the two reports from Union County.” As such,

the State concludes that there was no reasonable probability that the outcome of the trial

would have been different but for trial counsel’s alleged “failure” to raise Rogan’s alleged

mental incompetency or insanity. Finally, the State notes that Rogan does not claim that

his plea was not knowing or voluntary, citing State v. Pepper, 2d Dist. Miami No. 2013-

CA-6, 2014-Ohio-3841.

{¶ 25} “To prevail on an ineffective assistance claim, a defendant must establish:

(1) that his or her trial counsel’s performance was deficient and (2) that the deficient

performance resulted in prejudice.” State v. Treece, 2d Dist. Montgomery No. 29258,

2022-Ohio-1610, ¶ 7. Moreover, a plea of guilty waives any claim that the accused was

prejudiced by ineffective assistance of trial counsel, except to the extent that the

ineffectiveness alleged may have caused the plea to be less than knowing, intelligent,

and voluntary. State v. Stivender, 2d Dist. Montgomery No. 23973, 2011-Ohio-247,

¶ 15, citing State v. Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d Dist.1991). The

focus of that inquiry is the procedures by which the accused’s constitutional rights were

waived. Id., citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991); see also

Pepper at ¶ 8.

{¶ 26} As the State points out, Rogan does not allege that his pleas were not

knowing, intelligent, and voluntary. Moreover, we agree that deficient performance by

defense counsel and prejudice are not demonstrated. Our thorough review of the plea

hearing transcript reflects that Rogan’s guilty pleas were, in fact, knowing, intelligent, and -11-

voluntary. “The constitutional test under the Fourteenth Amendment for competency to

stand trial is ‘whether [the defendant] has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding – whether he has a rational as

well as factual understanding of the proceedings against him.’ ” (Citation omitted.) In re

Williams, 116 Ohio App.3d 237, 241-42, 687 N.E.2d 507 (2d Dist.1997). A “defendant is

presumed to be competent.” Id. at 242. Rogan consulted with defense counsel at both

hearings and he indicated his understanding thereof repeatedly. He stated that he was

satisfied with defense counsel’s performance. When asked by the court if he believed

that competency to stand trial was an issue, defense counsel responded, “I have not

experienced that.” We find that Rogan mischaracterizes the record when he asserts that

the trial court “found that [his] competency was questionable.” The trial court clearly

understood Rogan to be competent. He was found to be competent in Union County on

July 7, 2021. Finally, we agree with the State that Rogan’s argument that a second

competency evaluation in Champaign County might have found him incompetent is

speculative. Based upon the foregoing, Rogan’s assignment of error is overruled.

{¶ 27} The judgment of the Champaign County Common Pleas Court is affirmed.

EPLEY, J. and LEWIS, J., concur.

Copies sent to:

Jane A. Napier Kristin L. Arnold -12-

Hon. Nick A. Selvaggio