[Cite as State v. Peeples, 2012-Ohio-1149.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 10 MA 132
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
REGINA PEEPLES )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 09 CR 1309
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Megan Graff
Comstock, Springer & Wilson Co.
100 Federal Plaza East
Suite 926
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: March 16, 2012
[Cite as State v. Peeples, 2012-Ohio-1149.]
WAITE, P.J.
{¶1} Appellant, Regina Peebles, entered a guilty plea immediately prior to
trial on charges of endangering children and intimidation. On appeal she argues that
the trial court should have found her incompetent, that her plea was not knowingly
and voluntarily entered, and that she received ineffective assistance from trial
counsel. Appellant’s three assignments of error are without merit. The judgment of
the trial court is affirmed.
FACTUAL AND PROCEDURAL HISTORY OF THE CASE
{¶2} Appellant was indicted by the Mahoning County Grand Jury on
November 24, 2009. The indictment included two counts, the first, a violation of R.C.
2919.22(B)(3), (E)(3), captioned: “Endangering children,” which provides in
pertinent part:
{¶3} “(B) No person shall do any of the following to a
child under eighteen years of age or a mentally or
physically handicapped child under twenty-one years of
age:
{¶4} ***
{¶5} “(3) Administer corporal punishment or other
physical disciplinary measure, or physically restrain the
child in a cruel manner or for a prolonged period, which
punishment, discipline, or restraint is excessive under the
circumstances and creates a substantial risk of serious
physical harm to the child;
-2-
{¶6} ***
{¶7} “[(E)](3) If the offender violates division (B)(2), (B)(3)
* * * endangering children is a felony * * * [i]f the violation
results in serious physical harm to the child involved * * *
endangering children is a felony of the second degree.
{¶8} According to the indictment, the conduct that led to the charge occurred
on or about August 24, 2009 and involved the punishment or restraint of N.J., a child
less than seven years old.
{¶9} The second count in the indictment is a violation of R.C. 2921.04(B)(D),
captioned: “Intimidation of attorney, victim or witness in criminal case,” which
provides in part:
{¶10} (B) No person, knowingly and by force or by
unlawful threat of harm to any person or property, shall
attempt to influence, intimidate, or hinder the victim of a
crime in the filing or prosecution of criminal charges or an
attorney or witness involved in a criminal action or
proceeding in the discharge of the duties of the attorney or
witness.
{¶11} * * *
{¶12} (D) Whoever violates this section is guilty of
intimidation of an attorney, victim, or witness in a criminal
case. * * * A violation of division (B) of this section is a
felony of the third degree.
-3-
{¶13} The second count involves statements made to Philip, Dorian, and
Philip Chandler Cox around the dates of October 10, 2009 and November 19, 2009.
{¶14} Appellant was arraigned on December 8, 2009, entered not guilty pleas
on both counts, and was determined to be indigent. An attorney was appointed to
represent her. A hearing was held on Appellant’s request to modify bond at which
time trial was continued until February 22, 2010 on Appellant’s oral motion.
Appellant’s subsequent motion for dismissal on speedy trial grounds was denied. On
February 17, 2010 appointed counsel filed a motion to withdraw, due to an
irretrievable breakdown in communication. A hearing on counsel’s motion was held
on February 19, 2010, the court denied the motion to withdraw but granted leave for
a motion for determination of competency to be filed and continued the jury trial
pending the competency determination. Appointed counsel’s motion for a
competency determination was filed and on February 23, 2010 the court entered an
order for forensic examination of Appellant’s competence to stand trial. The
competency hearing was scheduled for March 25, 2010. On March 15, 2010,
Appellant filed a pro se motion seeking to have appointed counsel replaced with new
counsel.
{¶15} The competency hearing was held on March 25, 2010. The trial court
judge questioned Appellant about her understanding of the charges against her, her
rights regarding trial, and her understanding of the functions of the judge, the
prosecutor, and the jury relative to trial and court procedure. (Competency Tr., pp. 6-
8.) The judge also inquired as to Appellant’s medical and psychological history.
(Competency Tr., pp. 9-11.) Appellant indicated that in 1995 she was under the care
-4-
of a physician for “a traumatic incident” that resulted in “delusional episodes” and
hospitalization. At that time she was prescribed Risperdal for depression, “but they
took me off of that.” (Competency Tr., pp. 9-10.) Appellant further explained that the
treatment had concluded and that she was not currently under treatment, but she had
been meeting with a counselor to discuss her feelings about the current proceedings.
(Competency Tr., p. 10.) The judge confirmed with Appellant that she was no longer
having delusions. Appellant stated: “No, I’m not having any delusions. I’m not
suffering from a traumatic episode -- I didn’t suffer from something traumatic in this
case like, you know, that case was.” (Competency Tr., pp. 10-11.)
{¶16} The judge questioned Appellant about her agitation and outbursts at the
competency hearing and in prior appearances. Appellant, who had repeatedly “fired”
defense counsel when the hearing began, responded: “No one will listen * * * I been
[sic] repeatedly trying to get across I have not been properly represented in this case.
I feel that I’ve been treated unfair and unjust. * * * [T]he only way I’m getting attention
here now is because of the outbursts. If I wouldn’t have outbursts like that, no one
would even be listening to me right now.” (Competency Tr., pp. 8–9.) The judge
responded that those were reasons to seek new counsel, not explanations of her
behavior and admonished her that the behavior could not continue. The judge gave
both the prosecutor and defense counsel the opportunity to question Appellant
further, but both declined. The judge found that Appellant was competent.
(Competency Tr., p. 11.) No further competence inquiry was ordered. After this
ruling, the judge granted appointed counsel’s renewed motion to withdraw and
admonished Appellant that she would have to be very cooperative when new counsel
-5-
contacted her because, due to the absence of a speedy trial waiver, time was of the
essence. (Competency Tr., p. 12.) No reference to the evaluation ordered on
February 23, 2010 was made during the competency hearing and no such evaluation
was entered into evidence.
{¶17} New counsel was appointed and trial was reset. On June 2, 2010, prior
to trial, Appellant changed her plea to guilty. Appellant signed a Crim.R. 11(F) form
and the state recommended less than the maximum sentences on each count.
However, the transcript from the plea hearing indicates that although Appellant
signed the form, and wished to plead “guilty,” defense counsel stated that he did not
have an “agreement” with the state because the prosecutor intended to make a
sentencing recommendation that the defense felt was excessive. Defense counsel
emphasized that Appellant’s change of plea was not based on the prosecution’s
recommendation, but was based on her desire to change her plea and defense
counsel’s recommendation. (Change of Plea Tr., p. 3.) The judge then questioned
Appellant at length as to her understanding of her change of plea, the offenses she
was charged with, the possible penalties, the judge’s role as factfinder in sentencing,
the document she signed, the rights she would forego by pleading without a trial, and
confirmed that her plea was freely given. (Change of Plea Tr., pp. 3-10.) Appellant
entered her plea on the record and the judge ordered a pre-sentence investigation.
(Change of Plea Tr., pp. 10-11.)
{¶18} On July 12, 2010, Appellant was sentenced to four years in prison on
each count in the indictment, to be served concurrently. Appellant, who appeared
with counsel, was given a written notice that she was subject to three years of
-6-
mandatory post-release control, which she refused to sign. On July 13, 2010,
Appellant’s counsel filed a motion to withdraw and requested that substitute counsel
again be appointed to investigate the possibility of filing a motion to withdraw the
guilty plea, an appeal of the sentence, and a motion for judicial release. Appellant’s
counsel believed that because Appellant blamed counsel for her incarceration, he
would no longer be able to provide effective representation. Counsel’s motion to
withdraw was granted and new counsel was appointed for a third time. Appellant
filed her first notice of appeal, pro se, on August 5, 2010; a second notice of appeal
was filed by counsel on August 11, 2010. Both notices were timely; the second
motion was accompanied by a docketing statement and identified a final appealable
order in compliance with App.R. 3.
Assignment of Error No. One
{¶19} THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO FIND MS. PEEPLES INCOMPETENT TO
STAND TRIAL.
Assignment of Error No. Two
{¶20} MS. PEEPLES’ GUILTY PLEA WAS NOT KNOWINGLY,
INTELLIGENTLY, NOR VOLUNTARILY ENTERED.
{¶21} Appellant contends that the “outbursts” and “lashing out,” discussed by
the judge and explained by Appellant as frustration with counsel during the
competency hearing, were in fact sufficient indicia of incompetence to necessitate a
finding of incompetence by the trial court. Appellant further argues in her second
assignment of error that due to her incompetency her guilty plea was not made
-7-
knowingly and intelligently. As the propriety of the trial court’s competency finding is
determinative of both assignments, they will be considered together.
A. Competence
{¶22} “Fundamental principles of due process require that a criminal
defendant who is legally incompetent shall not be subjected to trial.” State v. Berry,
72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). An adult defendant is presumed to
be competent to stand trial. R.C. 2317.01 and R.C. 2945.37. In a criminal
proceeding the competence of the defendant may be raised by the court, sua sponte,
by the prosecutor, or by the defense, both prior to and during trial. R.C. 2945.37(B).
The defense bears the burden of production to rebut the presumption of competence.
State v. Williams, 23 Ohio St.3d 16, 19, 490 N.E.2d 906 (1986). An appellant’s
“failure to cooperate with counsel does not indicate that appellant was incapable of
assisting in his defense.” Berry, supra, at 361. Similarly, “lack of cooperation with
counsel does not constitute sufficient indicia of incompetence to raise doubt about a
defendant’s competence to stand trial,” even when combined with a defendant’s
continual erratic behavior which also “does not undermine the trial court’s findings of
his competence to stand trial.” State v. Vrabel, 99 Ohio St.3d 184, 189, 2003-Ohio-
3193, 790 N.E.2d 303, ¶29-30. 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
(1986).
{¶23} If the issue of competence is raised prior to trial, the court is required to
hold a hearing; prior to the hearing the court may refer the defendant for an
-8-
evaluation, but is not required to do so. Id. At the competency hearing the defendant
must be represented by counsel. R.C. 2945.37(D). Both the state and the defense
are permitted, but not required, to submit evidence. Id. at (E). Neither the fact that a
defendant is receiving or has received treatment for mental illness nor the fact that
defendant has received or is receiving psychotropic drugs or other medication is
sufficient to support an incompetence finding. R.C. 2945.37(F). A defendant may be
found incompetent only if 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.” R.C. 2945.37(G). A trial court’s
competence finding will not be reversed absent an abuse of discretion. Vrabel,
supra, at ¶33.
{¶24} In the matter at bar the trial court, on motion by defense counsel,
ordered an evaluation and held a competency hearing. At the hearing, although no
reference was made to a report, the court questioned Appellant extensively as to her
understanding of the charges against her, the legal process, the role of the court, the
jury, and the prosecutor, as well as her behavior before the court prior to and during
the competency hearing. Appellant was responsive to the court, repeatedly indicated
that she understood, and was able to coherently explain her behavior as well as her
past treatment for depression following some earlier “traumatic event.” (Competency
Tr., pp. 9-10.) Further, Appellant referred to her own pro se filing, on which the court
had not yet ruled, demonstrating a clear understanding of the mechanics of court
procedure. (Competency Tr., pp. 4-5.) Appellant offered nothing into evidence
-9-
during the hearing, prior to the hearing, or after the hearing indicating her alleged
incompetence. Under the circumstances, where the record is “devoid of any
objective indications” that Appellant’s competence should be questioned, and
reliable, credible evidence supports a finding of competence, the trial court’s
competency determination is well within the confines of discretion. State v. Chapin,
67 Ohio St.2d 437, 441-442, 424 N.E.2d 317 (1981). Appellant’s first assignment of
error is without merit and is overruled; the trial court’s finding of competence is
affirmed.
B. Validity of Appellant’s guilty plea
{¶25} Appellant’s second assignment of error argues that because Appellant
is incompetent, her plea was not knowingly or intelligently entered and therefore
invalid. Because the record reflects Appellant’s competence, the only issue apparent
with regard to the validity of Appellant’s change of plea is whether the court complied
with the requirements of Crim.R. 11 when accepting her plea. State v. Kelley, 57
Ohio St.3d 127, 128, 566 N.E.2d 658 (1991), (“When a trial court or appellate court is
reviewing a plea submitted by a defendant, its focus should be on whether the
dictates of Crim. R. 11 have been followed.”)
{¶26} Section (C)(2) of Crim.R. 11 requires the court, prior to accepting a
guilty plea, to determine that the defendant is “making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved,”
and make the defendant aware of his or her eligibility for “probation or for the
imposition of community control sanctions at the sentencing hearing.” Crim.R.
11(C)(2)(a). The trial court must further, prior to acceptance, inform the “defendant of
-10-
* * * the effect of the plea of guilty” and ascertain that the defendant understands that
effect as well as the fact that the “court, upon acceptance of the plea, may proceed
with judgment and sentence.” Crim.R. 11(C)(2)(b). Finally, the court must inform the
defendant of, and determine that the defendant understands, that “by the plea the
defendant is waiving the rights to jury trial, to confront witnesses against him or her,
to have compulsory process for obtaining witnesses in the defendant’s favor, and to
require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at
which the defendant cannot be compelled to testify against himself or herself.”
Crim.R. 11(C)(2)(c).
{¶27} The record reflects that the court punctiliously adhered to Rule 11.
(Change of Plea Tr., pp. 3-10.) Appellant testified that she went through the plea
document, which includes all of the information required by Crim.R. 11, with her
attorney, that her attorney read it for her in its entirety, and that she also read it
herself. (Change of Plea Tr., pp. 9-10.) The record shows that the trial court, once it
found Appellant competent, fully satisfied the requirements of Crim.R. 11 before
accepting Appellant’s change of plea. Appellant’s second assignment of error is
without merit and is overruled.
-11-
Assignment of Error No. Three
{¶28} MS. PEEPLES RECEIVED INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.
{¶29} Appellant acknowledges that the entry of a guilty plea ordinarily
constitutes waiver of the right to claim ineffective assistance of counsel. Despite this,
she argues that counsel’s substandard assistance rendered her plea “less than
knowing and voluntary.” (Appellant’s Brf., p. 10.) Appellant claims that the fact that
no independent evaluation of competence was requested by trial counsel and
counsel presented no evidence of incompetence at the competency hearing, these
failings somehow directly affected her decision to change her plea. Appellant’s
argument misstates the nature of the requirement that the guilty plea be knowingly
and intelligently entered.
{¶30} As earlier discussed, unless the conduct of counsel prevented
Appellant from understanding any of the elements identified in Crim.R. 11, counsel’s
decisions as to the quantity and the nature of evidence up to that point in the
proceeding are irrelevant to Appellant’s plea. Kelley, supra, at 130-131. The effect
of the plea, absent evidence that the plea was in some way coerced, is to waive all
errors that may have taken place prior to the entry of the plea. Appellant fails to
establish any causal relationship between the absence of evidence of incompetence
and her decision to change her plea. The record reflects full compliance with Crim.R.
11 and includes Appellant’s statements that her plea was voluntary, that no one
coerced her to change her plea, and that she had not received anything in exchange
for making her plea. (Change of Plea Tr., p. 8.) Because Appellant has failed to
-12-
establish a connection between the alleged defects in assistance and the validity of
her plea, she waived her right to argue counsel’s alleged ineffectiveness at the time
she entered her plea. It is unnecessary for us to undertake our usual review of
ineffective assistance claims pursuant to Strickland v. Washington, 466 U.S. 668, 689
(1984). Appellant’s third assignment of error is without merit. The judgment of the
trial court is affirmed.
CONCLUSION
{¶31} The trial court did not err in finding Appellant competent and Appellant’s
guilty plea was knowingly and intelligently entered, in full compliance with Crim.R. 11.
Appellant’s guilty plea waived any argument as to the effectiveness of counsel prior
to the entry of her plea. Appellant’s three assignments of error are overruled and the
judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.