[Cite as State v. Shepherd, 2009-Ohio-3317.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-09-03
v.
TERRY DALE SHEPHERD, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 08-CR-0065
Judgment Affirmed
Date of Decision: July 6, 2009
APPEARANCES:
Howard A. Elliott for Appellant
Jonathan K. Miller for Appellee
Case No. 16-09-03
PRESTON, P.J.
{¶1} Defendant-appellant, Terry Dale Shepherd (hereinafter “Shepherd”),
appeals the Wyandot County Court of Common Pleas’ judgment of conviction.
For the reasons that follow, we affirm.
{¶2} On November 6, 2008, the Wyandot County Grand Jury indicted
Shepherd on one count of aggravated murder in violation of R.C. 2903.01(B), an
unclassified felony, for the September 28-29, 2008 murder of Claradell J. Keller
(D.O.B. 3/20/1930). (Doc. No. 1). On November 7, 2008, Shepherd was arraigned
and entered a plea of not guilty. (Nov. 7, 2008 Tr. at 7); (Doc. No. 13). Attorney
Robert A. Grzybowski was appointed as Shepherd’s counsel. (Doc. No. 13).
{¶3} On December 5, 2008, Shepherd changed his plea to guilty pursuant
to a plea agreement. (Dec. 5, 2008 Tr. at 2, 8-9, 14-15); (Doc. Nos. 23, 25).
{¶4} On February 12, 2009, the trial court sentenced Shepherd to life
imprisonment without the possibility of parole. The trial court ordered that the
sentence be served consecutively to the sentence imposed in Shepherd’s other case
in Hardin County, Ohio. (Doc. No. 37).
{¶5} On February 18, 2009, Shepherd filed a notice of appeal. (Doc. No.
42). Shepherd now appeals raising two assignments of error for our review.
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ASSIGNMENT OF ERROR NO. I
IN LIGHT OF THE MATTERS IN THE RECORD BRINGING
INTO QUESTION THE APPELLANT’S COMPETENCY,
THERE WAS NO KNOWINGLY, VOLUNTARILY AND
INTELLIGENTLY MADE WAIVER OF RIGHTS BY
APPELLANT AND THE TRIAL COURT ERRORED [SIC] AS
A MATTER OF LAW AND COMMITTED REVERSIBLE
ERROR IN ACCEPTING THE PLEA OF GUILTY FROM
THE APPELLANT WHEN IT DID NOT CONDUCT A
COMPETENCY EVALUATION BEFORE ACCEPTING THE
APPELLANTS [SIC] PLEA OF GUILTY.
{¶6} In his first assignment of error, Shepherd argues that the trial court
erred in accepting his guilty plea without first conducting a competency
evaluation. Specifically, Shepherd argues that the evidence in the record indicated
that he had a history of mental health issues and was under the influence of several
psychotropic drugs at the time of the change of plea hearing. Shepherd further
points to the fact that he was confused over whether he was a U.S. citizen even
though he knew he was born in the U.S.
{¶7} The State, however, argues that a criminal defendant is presumed
competent, and the record does not contain sufficient indicia of incompetency.
Furthermore, the State points out that neither the trial court, nor the prosecutor, nor
defense counsel raised any issue as to Shepherd’s competency during any of the
proceedings. The State also argues that the trial court specifically found Shepherd
competent, and that his use of medications alone does not render him incompetent.
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We agree with the State that the record fails to indicate sufficient indicia of
incompetency such that a competency hearing was required.
{¶8} A defendant has a constitutional right to a competency hearing only
when the record contains “sufficient indicia of incompetence,” such that an inquiry
into the defendant’s competency is necessary to ensure the defendant’s right to a
fair trial. State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, citations
omitted. The test to determine competency to stand trial is whether the defendant
“‘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.’” Berry, 72 Ohio St.3d at 359,
quoting Dusky v. United States (1960), 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824.
However, a defendant is presumed competent to stand trial, and the trial court may
not find a defendant incompetent to stand trial solely because he/she is receiving
or has received psychotropic drugs or other medication. R.C. 2945.37(G), (F).
{¶9} A competency hearing is mandatory under R.C. 2945.37(B) only if
the issue of competency is raised prior to trial. State v. Bekesz (1991), 75 Ohio
App.3d 436, 441, 599 N.E.2d 803. The burden is on the defendant to put forth
sufficient evidence to raise the issue. State v. Bailey (1992), 90 Ohio App.3d 58,
67, 627 N.E.2d 1078. Whether to conduct a competency hearing sua sponte under
R.C. 2945.37(B) is left to the trial court’s discretion. State v. Smith (2000), 89
Ohio St.3d 323, 329, 731 N.E.2d 645. Under those circumstances, appellate
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review is limited to whether the trial court abused its discretion. Id. An abuse of
discretion is more than an error of law; rather, it implies that the trial court’s
attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. 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. Smith, 89 Ohio St.3d at 330.
{¶10} As the State points out, the issue of competency was not raised by
any of the parties during the proceedings. At the arraignment, the trial court asked
defense counsel, “Mr. Grzybowski, are you satisfied your client’s competence
[sic] to understand the nature of these proceedings?” (Nov. 7, 2008 Tr. at 5).
Defense counsel responded, “Yes, Your Honor,” and the trial court made a finding
of competency. (Id.). Thereafter, the following colloquy occurred:
THE COURT: * * * Are you a citizen of the United States?
MR. SHEPHERD: I -- I don’t think so.
THE COURT: You do --
MR. SHEPHERD: I’ve never registered.
MR. GRZYBOWSKI: No. Are you a citizen of the United
States? Were you born here?
MR. SHEPHERD: Yeah.
THE COURT: So you -- you were born in the United States of
America?
MR. SHEPHERD: Yes.
THE COURT: The Court will find the defendant to be a U.S.
citizen. * * *
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(Id. at 5-6). Thereafter, the trial court asked Shepherd whether he understood the
nature of the charges, to which Shepherd responded, “Yes, Aggravated Murder.”
(Id. at 6). Following these questions, Shepherd entered a plea of not guilty. (Id. at
7). No issue as to competency was raised during the arraignment.
{¶11} At the change of plea hearing, the trial court again inquired into
Shepherd’s competence and the voluntariness of his change of plea. (Dec. 5, 2008
Tr.). The following discussion occurred:
THE COURT: Do you remember the first time you were here at
your arraignment and I asked you some questions such as how
far you went in school and those kinds of things?
MR. SHEPHERD: Yes.
THE COURT: Since that time, have you suffered from or been
treated for any mental illness?
MR. SHEPHERD: No. Well, I just done -- I (Inaudible) mental
illness, but --
THE COURT: I’m sorry, I couldn’t understand --
MR. SHEPHERD: I just have an ongoing mental illness.
THE COURT: Does that affect your ability --
MR. SHEPHERD: No.
THE COURT: -- to think clearly?
MR. SHEPHERD: I mean, it just – I’m just on medication.
That’s all.
THE COURT: Does that medication affect your ability to think
clearly?
MR. SHEPHERD: No. No.
THE COURT: Are you under the influence of any alcohol --
well, you’ve already said you’re under the influence of --
MR. SHEPHERD: That’s correct.
THE COURT: -- some medications?
MR. SHEPHERD: Right. No. drug --
THE COURT: Aside from the medications that --
MR. SHEPHERD: No drugs or alcohol.
***
THE COURT: And the medication you’re on is what?
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MR. SHEPHERD: Uhm, Trazodone, Lithium, uhm, Prozac,
uhm, -- there’s some – there’s some other -- (Inaudible).
***
THE COURT: Mr. Grzybowski, are you satisfied your client’s
competent to understand the nature of these proceedings?
MR. GRZYBOWSKI: Your Honor, I am confident that he
understands, and, uhm, the reason I feel that way is that we’ve
had the opportunity to discuss this matter on several occasions.
Uhm, and I am aware of his -- the issues regarding his mental
health; however, that medication he takes on a regular basis.
And it is my understanding, at least it’s been represented to me,
that, uhm, it has no impact upon his ability to understand, uhm,
legal proceedings, in particular this one.
THE COURT: Well, I was led to understand you had an
opportunity to consult with Mr. Shepherd today?
MR. GRZYBOWSKI: That’s correct, ma’am.
THE COURT: And you felt he was coherent?
MR. GRZYBOWSKI: Yes, ma’am. We had a conversation and
I did feel and I do feel that he is coherent.
THE COURT: So you’re satisfied he’s competent?
MR. GRZYBOWSKI: Yes, ma’am.
THE COURT: All right. The Court will deem the defendant
competent. Mr. Shepherd, are you a citizen of the United
States?
MR. SHEPHERD: Yes.
(Id. at 2-5). When the trial court asked Shepherd why charges were filed against
him, Shepherd stated:
Oh, I broke into a house. There was a lady there. I was
burglarizing the place. She surprised me just as much as I
surprised her. Uhm, I, uhm, tied her up with a chord [sic] while
I went through everything in the house. And then I got --
realized, you know, I can’t leave her because everybody knows
me in the area, so I strangled and suffocated her at the same
time and I put her on the bed and then set the house on fire and
I left.
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(Id. at 14). At the sentencing hearing, the trial court asked defense counsel if there
was any legal cause why sentence should not be pronounced, to which counsel
replied, “None, Your Honor.” (Feb. 12, 2009 Tr. at 3). Again, no issue regarding
Shepherd’s competency was raised at the sentencing hearing.
{¶12} After independently reviewing the record, we cannot conclude that it
contains sufficient indicia of incompetence such that the trial court abused its
discretion by failing to sua sponte conduct a competency hearing prior to
Shepherd’s guilty plea. The record clearly indicates that the trial court inquired
into Shepherd’s competence, and his attorney stated that he believed that Shepherd
was competent. (Nov. 7, 2008 Tr. at 5); (Dec. 5, 2008 Tr. at 4). The record also
indicates that the trial court inquired into Shepherd’s medications, and both
Shepherd and defense counsel indicated that the medications in no way affected
his ability to understand the nature of the proceedings. (Dec. 5, 2008 Tr. at 2-5).
The fact that Shepherd was taking medications alone is insufficient to find that he
was incompetent. R.C. 2945.37(F). Furthermore, as to his citizenship, it is clear
from the record that Shepherd understood that he was born in the U.S., and at the
change of plea hearing stated, without reservation, that he was a U.S. citizen.
(Dec. 5, 2008 Tr. at 5). Our review of the transcript also reveals that Shepherd
was able to effectively communicate with counsel. (Id. at 4). Shepherd also stated
on the record the factual basis for the charges against him with sufficient clarity to
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undermine any suggestion of incompetence. (Dec. 5, 2008 Tr. at 14).
Furthermore, aside from the transcript of the proceedings, Shepherd declared that
he understood the nature of the charges against him, was satisfied with counsel’s
representation, and was not under the influence of drugs or alcohol in his written
plea agreement. (Doc. No. 23). For all these reasons, we cannot conclude that the
trial court abused its discretion by failing to conduct a competency hearing sua
sponte.
{¶13} Shepherd’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE DEFENDANT WAS NOT AFFORDED EFFECTIVE
ASSISTANCE OF COUNSEL AND THE DEFENDANT’S
PLEAS SHOULD BE VACATED WHERE THE STATE
FAILED TO ADHERE TO ITS OBLIGATIONS UNDER THE
PLEA AGREEMENT AND TRIAL COUNSEL TOOK NO
ACTION RESPECTING THE BREACH OF THE PLEA
AGREEMENT.
{¶14} In his second assignment of error, Shepherd argues that he was
denied effective assistance of counsel when his counsel failed to ensure that the
State fulfilled its obligations under the plea agreement. Specifically, Shepherd
argues that the State breached the plea agreement by failing to pursue charges
against Brandy1 Shepherd (hereinafter “Brandy”) who he implicated in the crimes.
1
Although this name is spelled both “Brandy” and “Brandi” in the record, we elect “Brandy” for purposes
of this appeal. (See Doc. No. 23 vs. Dec. 5, 2008 Tr. at 9 & Feb. 12, 2009 Tr. at 4-6).
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{¶15} The State, on the other hand, argues that Shepherd has failed to
demonstrate that counsel was ineffective since he has failed to demonstrate that
the State breached its plea agreement. In fact, the State alleges that it did pursue
charges against Brandy, which is the subject of a Hardin County Grand Jury
investigation. However, the State acknowledges that legal issues surrounding
spousal privilege may ultimately prevent the grand jury from returning an
indictment against Brandy. The State argues that Brandy’s spousal privilege rights
were explained to Shepherd at his change of plea hearing, but Shepherd made no
attempt to withdraw his guilty plea at that time.
{¶16} 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 (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. 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 he/she would not have pled guilty. State v.
Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing Hill v. Lockhart
(1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.E.2d 203; Strickland, 466 U.S. at
687.
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{¶17} Shepherd has failed to demonstrate that, but for counsel’s deficient
performance, he would not have pled guilty. Xie, 62 Ohio St.3d at 524, citing Hill,
474 U.S. at 59; Strickland, 466 U.S. at 687. Shepherd negotiated the plea
agreement in order to avoid the death penalty. (Doc. No. 23). The record reveals
that Shepherd received the benefit of his bargain, and that the trial court sentenced
Shepherd to life imprisonment, even though it might have otherwise sentenced
him to death. (Feb. 12, 2008 Tr. at 28); (Feb. 18, 2009 JE, Doc. No. 37 at 3).
Furthermore, at the change of plea hearing, the trial court inquired as to whether
Shepherd understood that Brandy also might have spousal privileges:
THE COURT: And, Mr. Shepherd, you understand, and I don’t
know the circumstances involving a Brandy Shepherd, but it
speaks to you waiving all immunity, arguments or spousal
privileges to such testimony, and do you understand if Brandy
Shepherd is your spouse that she also has those privileges?
MR. SHEPHERD: Right. That’s correct.
THE COURT: You understand that?
MR. SHEPHERD: Yeah.
(Dec. 5, 2008 Tr. at 9-10). Before the trial court sentenced Shepherd, the trial
court asked if there was any legal cause not to proceed to sentencing, to which
defense counsel stated, “None, Your Honor.” (Feb. 12, 2008 Tr. at 3). In his
sentencing statement, Shepherd implicated Brandy in the crimes and expressed his
concern that charges had not been filed against her even though she was also
involved. (Feb. 12, 2009 at 5). Defense counsel then informed the trial court that
Shepherd wanted “to make sure that * * * everyone was aware that Brandy
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Shepherd was involved also. That’s the statement, Your Honor.” (Id. at 5-6).
However, Shepherd did not move to withdraw his guilty plea at that time.
Therefore, we cannot conclude that, but for counsel’s alleged ineffectiveness,
Shepherd would not have pled guilty.
{¶18} Additionally, the plea agreement states only that the State “will
pursue charges against Brandi Shepherd,” not that Brandy will be convicted or
even indicted. (Doc. No. 23). There is also nothing in the record to demonstrate
that defense counsel failed to ensure that the State pursued charges against
Brandy. Nor is there anything in the record, which demonstrates that the State
has, in fact, failed to pursue charges. The fact of the matter is that counsel was
able to negotiate a plea agreement that guaranteed Shepherd would not face the
death penalty. Under the circumstances of this case, we cannot conclude that
defense counsel’s performance was deficient or unreasonable.
{¶19} Shepherd’s second assignment of error is, therefore, 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.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jnc
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