[Cite as State v. Alvarado, 2014-Ohio-5374.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case No. 14CA3423
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
WALTER G. ALVARADO, :
: RELEASED: 12/02/2014
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Timothy Young, State Public Defender, and Peter Galyardt, Assistant State Public
Defender, Columbus, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Cynthia G. Schumaker,
Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Walter Alvarado, who appeals his convictions for felonious assault and
possession of a deadly weapon while under detention, contends that the trial court
abused its discretion by denying his request for a third competency evaluation.
Specifically, he argues that the trial court failed to consider the relevant factors identified
by the United States Supreme Court in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896,
43 L.Ed.2d 103 (1975). However, the record suggests that the court considered all the
evidence presented by defense counsel. The court recounted in its entry that the
previous reports found Alvarado competent and also considered defense counsel’s
opinion that Alvarado was exhibiting signs of extreme paranoia and delusional thinking,
but determined that his untrained evaluation alone was insufficient to require a third
Ross App. No. 14CA3423 2
evaluation. Nothing in the court’s logic is unreasonable, arbitrary or unconscionable, so
we reject Alvarado’s argument.
I. FACTS
{¶2} The Ross County Grand Jury returned an indictment charging Alvarado
with one count of felonious assault and one count of possession of a deadly weapon.
After entering a plea of not guilty defense counsel filed a motion suggesting that
Alvarado was not competent and requested a competency evaluation. The trial court
granted him leave to file a plea of not guilty by reason of insanity and also ordered a
competency evaluation pursuant to R.C. 2945.37 and 2945.39. After the first evaluation
defense counsel requested a second evaluation. Both reports determined that Alvarado
was competent a finding that the parties stipulated to. The trial court held a hearing
pursuant to R.C. 2945.37 and based on the reports and the stipulation the court found
Alvarado competent to stand trial.
{¶3} Prior to trial defense counsel filed a “renewed suggestion of
incompetence” and requested a third competency evaluation for Alvarado under R.C
2945.371. In the attached memorandum in support defense counsel stated that
although he had previously stipulated to Alvarado’s competence, he subsequently met
with Alvarado and in his opinion Alvarado was “exhibiting signs of extreme paranoia and
delusional thinking * * *.” Citing State v. Johnson, 9th Dist. Summit No. 25620, 2011-
Ohio-6417, the trial court found defense counsel had provided no evidence other than
his “untrained evaluation,” and denied Alvarado’s request for a third competency
evaluation. Thereafter, Alvarado pleaded no contest to both charges, the trial court
found him guilty, and sentenced him accordingly. This appeal followed.
Ross App. No. 14CA3423 3
II. ASSIGNMENT OF ERROR
{¶4} Alvarado raises one assignment of error for our review:
The trial court violated Walter Alvarado’s right to due process and failed to
exercise any discretion when it denied his request for a third competency
evaluation.
III. LAW AND ANALYSIS
{¶5} In his sole assignment of error Alvarado argues that the trial court erred by
denying his request for a third competency evaluation. Specifically, he claims that the
court failed to consider the relevant factors identified by the United States Supreme
Court in Drope including: 1.) doubts from counsel about the defendant’s competency;
2.) evidence of irrational behavior; 3.) the defendant’s demeanor in court; and 4.) prior
medical opinions relating to competency.
{¶6} In a criminal action the defense may raise the issue of a defendant’s
competence to stand trial, and if the issue is raised prior to trial, the court must hold a
hearing on the issue. R.C. 2945.37(B). However, this provision does not require the
court to order an evaluation prior to the hearing. State v. Perotti, 4th Dist. Scioto No.
89CA1845, 1991 WL 87303, *7 (May 15, 1991). Rather, R.C. 2945.371(A) states that if
the defendant raises the issue of competency, the trial court “may order one or more
evaluations of the defendant’s present mental condition * * *.” Accordingly, a
competency evaluation is not required every time the issue of competency is raised by
the defendant. State v. Stahl, 2nd Dist. Greene No. 2004-CA-69, 2005-Ohio-2239, ¶
19. Rather, “[t]he number of evaluations to be ordered ‘is left to the sound discretion of
the trial court.’” In re J.B., 12th Dist. Butler No. CA2004-09-226, 2005-Ohio-7029, ¶ 35,
quoting State v. Duncan, 9th Dist. Medina No. 3117–M, 2001 WL 1044206, *6 (Sept.
Ross App. No. 14CA3423 4
12, 2001). See also State v. Hix, 38 Ohio St.3d 129, 131, 527 N.E.2d 784 (1988)
(finding the word “may” in the statutory language of former R.C. 2945.39(A)
unambiguously granted a trial court discretion to decide if more than one psychiatric
examination is necessary).
{¶7} Thus, we will not reverse a trial court’s decision regarding the number of
competency evaluations ordered absent an abuse of discretion. See Perotti at *7. An
abuse of discretion means more than an error of judgment; it implies that the court’s
decision was “unreasonable, arbitrary or unconscionable.” Stammco, L.L.C. v. United
Tel. Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042, 926 N.E.2d 292, ¶ 32.
{¶8} To support his argument that the trial court was required to consider the
factors identified in Drope before ruling on his motion for a third competency evaluation,
Alvarado cites State v. Rubenstein, 40 Ohio App.3d 57, 531 N.E.2d 732 (8th Dist.1987).
The defendant in Rubenstein was challenging the trial court’s decision regarding a
competency hearing, rather than its failure to order a competency evaluation. The court
held that “[a] trial court, in making a determination of whether to hold a sua sponte
hearing concerning the accused’s competence to stand trial, should consider the
following: (1) doubts expressed by counsel as to the defendant's competence; (2)
evidence of irrational behavior; (3) the defendant’s demeanor at trial; and (4) prior
medical opinion relating to competence to stand trial.” Rubenstein at paragraph two of
the syllabus. As we have already noted, the decision to order a competency evaluation
and hold a competency hearing are distinct and controlled by separate statutes.
Nevertheless, appellate courts have applied the factors identified in Rubenstein and
Drope to review a trial court’s decision whether to order a competency evaluation. See
Ross App. No. 14CA3423 5
State v. Ridley, 6th Dist. Lucas No. L-10-1314, 2013-Ohio-1268, ¶ 20; In re Moyer, 5th
Dist. Licking No. 2005CA00058, 2006-Ohio-85, ¶ 18-22; but see State v. Hart, 12th Dist.
Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 26 (finding appellate courts are not
limited to “very specific criteria,” including evidence of irrational behavior, defiant
demeanor at trial, or counsel’s doubts about defendant’s competency, when reviewing
the basis for a competency evaluation).
{¶9} However, there is nothing in the record to suggest that the court failed to
consider all the evidence provided by defense counsel before ruling on his motion for a
third competency evaluation. At a hearing on August 6, 2013, defense counsel
informed the court that Alvarado appeared to be in a different mental state than when
he was first evaluated. Specifically, he stated “it appears that something, in [Alvarado’s]
own words, something is not right in his mind” and Alvarado “feels that forces are
conspiring against him to do him harm.” The state agreed that Alvarado’s mental
condition had “decreased,” and did not oppose the motion. The trial court responded
that it understood “competency is a fluid condition,” but there had been “a very, very
recent evaluation,” and both parties had stipulated to the previous reports which found
Alvarado competent to stand trial. The court decided to defer its decision for two weeks
and invited both counsel to “cite authority which supports the proposition that this Court
can order a third or a fourth or a fifth evaluation based upon additional suggestions of
incompetency.”
{¶10} Nearly a month later Alvarado filed a “renewed suggestion of
incompetence,” again asking for a third a competency evaluation. The only reason
given by defense counsel in support of his request was that in his opinion Alvarado was
Ross App. No. 14CA3423 6
“exhibiting signs of extreme paranoia and delusional thinking.” He also attached State
v. Solomon, 59 Ohio St.3d 124, 570 N.E.2d 1118 (1991), “as an example of a trial court
ordering more than two evaluations for a single defendant.”
{¶11} In its journal entry overruling Alvarado’s request for a third competency
evaluation the court found Solomon inapposite to the facts of the case. Rather, it noted
that Alvarado “has previously been evaluated by two psychologists to determine his
competency,” and both doctors filed reports “in which they opined that the defendant
was presently able to understand the nature and objectives of the legal proceedings
against him and presently able to assist his attorney in his defense despite the fact that
he does not speak English well.” The court also noted that neither psychologist
observed any evidence that Alvarado was exhibiting signs of extreme paranoia and
delusional thinking. In sum, the court found that defense counsel had given “no
evidence other than [his] untrained evaluation of the defendant,” and this alone was
insufficient to order an additional evaluation.
{¶12} We see nothing in the court’s decision that is unreasonable, arbitrary or
unconscionable. Even if we accept defense counsel’s untrained opinion that Alvarado
was exhibiting signs of paranoia and delusional thinking, the Supreme Court of Ohio
has consistently held “ ‘[i]ncompetency must not be equated with mere mental or
emotional instability or even with outright insanity’ ” and “ ‘[a] defendant may be
emotionally disturbed or even psychotic and still capable of understanding the charges
against him and of assisting his counsel.’ ” State v. Neyland, 139 Ohio St.3d 353, 2014-
Ohio-1914, 12 N.E.3d 1112, ¶ 48, quoting State v. Bock, 28 Ohio St.3d 108, 110, 502
N.E.2d 1016 (1986). Moreover, in State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-
Ross App. No. 14CA3423 7
6404, 858 N.E.2d 1144, the Supreme Court of Ohio held that a trial court did not abuse
its discretion by denying a defendant’s request for a competency evaluation when the
only evidence presented by counsel was his unsupported assertion of the defendant’s
expected diagnosis of “paranoid personality disorder [and] reality contact problems.”
Johnson at ¶ 163-164.
{¶13} Alvarado also points out that in the first evaluation, Dr. Daniel Davis
opined that given his history of depression, Alvarado’s competency condition could
deteriorate and argues these statements are proof that “his competency could change
over time.” Nevertheless, at the hearing the court acknowledged “competency is a fluid
condition,” and therefore implicitly recognized Alvarado’s argument.
{¶14} Alvarado further claims that under Drope, 420 U.S. 162, 95 S.Ct. 896, 43
L.Ed.2d 103, three of the four specified factors supported a third competency
evaluation—doubts expressed by counsel about Alvarado’s competence, evidence of
irrational behavior, and his demeanor during the plea and sentencing hearing. Although
all of these factors are relevant to the trial court’s determination, the presence of one of
these factors may be sufficient to support the decision. Id. at 180; In re Andrew W., 5th
Dist. Knox No. 12-CA-24, 2014-Ohio-1576, ¶ 15. Therefore, the fact that three factors
might support one conclusion may be insufficient to overturn a trial court’s decision in
light of the remaining factor.
{¶15} Moreover, there is no indication that Alvarado engaged in irrational
behavior at the plea and sentencing hearing. Although he advised the court that he was
not “well in my mind,” that it was “very hard to concentrate in the words that you are
saying to me,” and that he had “mental problems,” there was no outburst or other
Ross App. No. 14CA3423 8
evidence supporting his counsel’s statements of him experiencing hallucinations,
paranoia, or delusional thinking. And the record does not indicate that there was
anything in Alvarado’s demeanor indicating that his mental status had decreased to the
point where a third competency evaluation in less than a year was required. Alvarado
ultimately advised the court during its detailed plea colloquy that he understood his plea
and was doing it voluntarily and intelligently. When applying the abuse-of-discretion
standard, an appellate court is not free to substitute its judgment for that of the trial
court. See State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940 (2001).
Consequently, although we may have reached a different conclusion on the same facts,
we may not substitute our judgment for that reached by the trial court on this matter.
{¶16} The trial court did not act in an unreasonable, arbitrary, or unconscionable
manner in denying Alvarado’s request for a third competency evaluation. The two
previous competency evaluations established that although Alvarado experienced
depression, he was competent to stand trial, he did not exhibit either irrational behavior
or unusual demeanor at the plea and sentencing hearing, and his trial counsel
conceded at that hearing that he could not find any case authority that required the trial
court to order a third evaluation. The trial court also conducted a detailed plea colloquy
in which it determined that Alvarado voluntarily, knowingly, and intelligently entered a
plea of no contest, and Alvarado received the minimum prison sentence for the crimes.
We overrule Alvarado’s assignment of error.
IV. CONCLUSION
{¶17} We cannot say the trial court abused its discretion by denying Alvarado’s
request for a third competency evaluation. Nor can we conclude—as Alvarado claims
Ross App. No. 14CA3423 9
on appeal—that the court failed to exercise its discretion. To the contrary, the record
shows that the court considered the evidence presented by defense counsel and gave
him time to provide additional authority in support for his position. Based on the
competency evaluations, the trial court’s detailed plea colloquy, and the absence of any
evidence to support his trial counsel’s untrained evaluation of his competence, the trial
court’s denial of Alvarado’s request was neither unreasonable, arbitrary, nor
unconscionable. We overrule his assignment of error and affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Ross App. No. 14CA3423 10
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 Ross
County Court of Common Pleas 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.
Abele, P.J. & Hoover, 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.
State v. Alvarado
Combined Opinion