[Cite as State v. Miller, 2017-Ohio-2657.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104721
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HARRY MILLER
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-601583-A
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: May 4, 2017
ATTORNEY FOR APPELLANT
Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Jeffrey Schnatter
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Harry Miller (“Miller”), appeals his convictions and
sentence. Miller raises six assignments of error, but we find the first assigned error has
merit and is dispositive of this appeal. It states:
1. The trial court erred in failing to hold a competency hearing prior to
accepting the appellant’s plea when the issue of his competency was raised
prior to trial.
I. Facts and Procedural History
{¶2} Miller was charged with one count of gross sexual imposition in violation of
R.C. 2907.05(A)(4), with a sexual motivation specification, and one count of kidnapping
in violation of R.C. 2905.01(A)(4). The charges resulted from an incident in which
Miller molested the victim, K.G., in a movie theater.
{¶3} K.G.’s grandmother brought K.G. and her brother to see a children’s movie
titled “The Peanuts Movie.” Although the theater was practically empty, Miller chose to
sit next to K.G., and rubbed her leg during the film. K.G., who was ten years old, told
her grandmother about the incident after the movie. Miller, who remained at the scene to
see another children’s movie, was arrested later that evening.
{¶4} Miller pleaded guilty to one count of kidnapping in violation of R.C.
2905.01(A)(3), which no longer included language involving a victim under 13 years of
age, and one count of gross sexual imposition, which was amended to delete the sexual
motivation specification. The kidnapping and gross sexual imposition counts merged for
sentencing purposes, and the state elected to have Miller sentenced on the kidnapping
charge. The court sentenced Miller to a ten-year prison term followed by five years of
postrelease control. The court also classified Miller as a Tier I sex offender. Miller
now appeals his convictions and sentence.
II. Law and Analysis
{¶5} In the first assignment of error, Miller argues the trial court erred by failing to
hold a competency hearing before accepting his guilty plea.
{¶6} “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). A defendant is “incompetent” if he “is incapable of
understanding the nature and objective of the proceedings against [him] or of assisting in
the defendant’s defense.” Id.
{¶7} If a defendant’s competency to stand trial “is raised before the trial has
commenced, the court shall hold a hearing on the issue.” (Emphasis added.) R.C.
2945.37(B). Therefore, “where the issue of the defendant’s competency to stand trial is
raised prior to trial, a competency hearing is mandatory.” State v. Bock, 28 Ohio St.3d
108, 109, 502 N.E.2d 1016 (1986); see also State v. Ahmed, 103 Ohio St.3d 27,
2004-Ohio-4190, 813 N.E.2d 637, ¶ 64; State v. Jirousek, 8th Dist. Cuyahoga No. 99641,
2013-Ohio-4796, ¶ 10.
{¶8} In Bock, the Ohio Supreme Court held that “the failure to hold a mandatory
competency hearing is a harmless error where the record fails to reveal sufficient indicia
of incompetency.” Id. at 110. The state argues we should find the court’s failure to
hold a competency hearing in this case was harmless because an unsworn witness at
Miller’s sentencing hearing stated that a psychological report from the court’s psychiatric
clinic indicated he was competent.
{¶9} However, this case is distinguishable from Bock. In Bock, the court found
the defendant competent because he testified at trial, was subject to cross-examination,
and the record failed to reveal sufficient indicia of incompetency. Id., at paragraph one
of the syllabus. In this case, Miller pleaded guilty; he did not testify. At the plea
hearing, Miller answered yes or no to questions about whether he understood the rights he
was waiving by virtue of his guilty plea. There were no “indicia of competency” on
which the court could make an accurate competency determination. Indeed, the record is
devoid of any formal finding regarding Miller’s competency despite an order referring
Miller to the court psychiatric clinic for a competency evaluation.
{¶10} The facts of this case are identical to the facts in State v. Flanagan, 8th Dist.
Cuyahoga No. 103680, 2017-Ohio-955, in which this court reversed the defendant’s
conviction because the trial court failed to hold a competency hearing before accepting
the defendant’s guilty plea. In Flanagan, we explained:
Unlike in Bock, the record in this case is insufficient to allow us to conclude
that the trial court’s failure to conduct a competency hearing was harmless
error. Although the court psychiatric clinic submitted a report, no further
action was taken to determine whether Flanagan was competent — the
docket reflects that the parties did not stipulate to Flanagan’s competence,
the trial court did not hold a hearing to evaluate Flanagan’s competence,
and the trial court made no formal finding regarding Flanagan’s competence
after the issue was raised.
Indeed, the docket contains no reference whatsoever to Flanagan’s
competency after the docket entry referring him for a competency
evaluation. And the transcript of the plea hearing demonstrates that the
trial court made no reference to the competency report or to Flanagan’s
competency prior to accepting his plea. After the plea was taken, the trial
court informed Flanagan of the date for sentencing. Only then did it note
that there was a court psychiatric report dated June 19, 2015, concerning
Flanagan’s competency to stand trial, and a mitigation report dated April
27, 2015. The court then asked defense counsel if either report needed to
be updated for the purposes of sentencing. The trial court made no
competency determination at or before the plea hearing; its comments about
the competency report, made after the plea was accepted, were the only
reference it made to Flanagan’s competency.
Thus, in Flanagan, we determined that the trial court’s failure to hold a competency
hearing was not harmless even though the court received a report from the court’s
psychiatric clinic indicating the defendant was competent.
{¶11} A criminal defendant is not required to stipulate to the court’s psychiatric
report because he has the right to challenge it. The purpose of a competency hearing is
to give the defense an opportunity to test the validity of the findings in the report and to
make a record for appellate review. Indeed, the appellate court may reverse a trial
court’s finding of competency. See, e.g., In re Williams, 116 Ohio App.3d 237, 245, 687
N.E.2d 507 (2d Dist.1997) (reversing court’s finding of competency where the reports
and testimony of expert witnesses “muddled” incorrect standards of law and inappropriate
judgments about moral responsibility.).
{¶12} The docket in this case contains no reference to Miller’s competency
except for the journal entry referring him for a psychological evaluation. The court
mentioned the psychological report on the record at the plea hearing, but not until after
Miller had already entered his guilty pleas. And rather than make a determination of
competency, the court asked counsel if a competency evaluation had been done. (Tr.
20.) Although defense counsel indicated the evaluation was completed, counsel did not
indicate the results of the evaluation. The only indicia of competency came from the
unsworn statement of Miller’s niece at the sentencing hearing that the court’s
psychological evaluation indicated he was competent. It is impossible to determine
whether Miller entered his guilty pleas knowingly, intelligently, and voluntarily without
knowing if he was competent at the time he entered them.
{¶13} The fact that the trial court referred Miller for a psychological evaluation
suggests there were some indicia of incompetence. Yet, there was virtually no indicia of
competence, except for a couple of vague unsworn statements alluding to a report. An
evidentiary hearing is both statutorily and constitutionally required when the issue of
competency is raised before trial and “there are sufficient indicia of incompetency to call
into doubt the defendant’s competency to stand trial.” State v. Were, 94 Ohio St.3d 173,
175, 761 N.E.2d 591 (2002). Therefore, the trial court erred in failing to hold a
competency hearing as mandated by R.C. 2945.37(B) before accepting Miller’s guilty
pleas.
{¶14} The first assignment of error is sustained.
{¶15} Having determined the trial court erred in failing to hold a competency
hearing before the trial court accepted Miller’s guilty pleas, the remaining assignments of
error, listed in the appendix, are moot. App.R. 12(A)(1)(c).
{¶16} Judgment reversed. We remand the case to the trial court for a competency
hearing.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
APPENDIX
Remaining assignments of error
II. Appellant received ineffective assistance of counsel guaranteed by Article I,
Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendment to
the United States Constitution.
III. The trial court erred in imposing the appellant’s sentence when it failed to make
the required findings under R.C. 2929.11 and 2929.12.
IV. The trial court erred when it notified the appellant of his obligation to register as a
sex offender.
V. The cumulative effect of the errors committed by the trial court and by appellant’s
trial counsel combined to deny appellant due process and a fair trial as guaranteed
by the United States and Ohio Constitutions.
VI. The trial court erred a deprived appellant of his property without due process of
law and his rights under the Fifth Amendment of the United States Constitution
when it imposed court costs outside his presence.