State v. Purdy

[Cite as State v. Purdy, 2022-Ohio-1131.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-21-16

v.

CHARLES M. PURDY, II, OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court
Trial Court No. 2021-CR-0055

Judgment Affirmed

Date of Decision: April 4, 2022

APPEARANCES:

James F. Hearn for Appellant

Laia Zink for Appellee
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ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Charles M. Purdy, II (“Purdy”), appeals the July

20, 2021 judgment entry of sentence of the Auglaize County Court of Common

Pleas. For the reasons that follow, we affirm.

{¶2} On March 18, 2021, the Auglaize County Grand Jury indicted Purdy on

fourteen counts of pandering obscenity involving a minor in violation of R.C.

2907.321(A)(5), fourth-degree felonies. On March 23, 2021, Purdy appeared for

arraignment and entered pleas of not guilty.

{¶3} On July 19, 2021, Purdy withdrew his pleas of not guilty and entered

pleas of guilty, under a negotiated-plea agreement, to the counts of the indictment.

In exchange for his change of pleas, the State agreed to a joint-sentencing

recommendation. The trial court accepted Purdy’s guilty pleas, found him guilty,

and sentenced Purdy to 18 months in prison on Counts One through Eight and 12

months in prison on Counts Nine through Fourteen.1 (Doc. No. 43). The trial court

ordered that Purdy serve the prison terms for Counts One through Eight

consecutively. (Id.). Further, the prison terms imposed as to Counts Nine through

Fourteen were ordered to be served concurrently to the consecutive prison-terms

imposed as to Counts One through Eight, for an aggregate sentence of 144 months

in prison (one-year less than the joint-sentencing recommendation of the parties).

1
The trial court filed its judgment entry of conviction and sentence on July 20, 2021. (Doc. No.43).

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(Id.); (July 19, 2021 Tr. at 43). The trial court also classified Purdy as a Tier II sex

offender.

{¶4} On August 31, 2021, Purdy filed a motion for a delayed appeal, which

this court granted on September 10, 2021. (See also Doc. No. 66). He raises two

assignment of error for our review.

Assignment of Error No. I

The Trial Court erred when it failed to order a competency
evaluation of the Defendant prior to his change of plea.

{¶5} In his first assignment of error, Purdy argues that the trial court erred

by failing to sua sponte order a competency evaluation prior to accepting his guilty

pleas. Specifically, Purdy contends that the trial court had a duty to sua sponte order

a competency evaluation because it was disclosed on the record that he suffered a

traumatic-brain injury during his military service in Afghanistan.

Standard of Review

{¶6} “Because it is left to the discretion of the trial court, we review a trial

court’s decision to order a competency hearing for an abuse of discretion.” State v.

Swoveland, 3d Dist. Van Wert No. 15-17-14, 2018-Ohio-2875, ¶ 28, citing State v.

Shepherd, 3d Dist. Wyandot No. 16-09-03, 2009-Ohio-3317, ¶ 9 and State v.

Prophet, 10th Dist. Franklin No. 14AP-875, 2015-Ohio-4997, ¶ 14, citing State v.

Smith, 89 Ohio St.3d 323, 330 (1990). An abuse of discretion suggests that a

decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio

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St.2d 151, 157-158 (1980). “‘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.’” Swoveland at ¶ 28, quoting Shepherd at ¶ 9, citing Smith at 330.

Analysis

{¶7} “In addition to the requirement that a defendant’s guilty plea be

knowing, intelligent, and voluntary, a trial court must satisfy itself that a defendant

who seeks to plead guilty is competent.” Id. at ¶ 25. “‘A defendant is presumed

competent to stand trial, and the burden is on the defendant to prove by a

preponderance of the evidence that he is not competent.’” Id., quoting Prophet at ¶

13, citing State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶ 28, State v.

Scurlock, 2d Dist. Clark No. 2002-CA-34, 2003-Ohio-1052, ¶ 77, and R.C.

2945.37(G).

In a criminal action in a court of common pleas, * * * the court,
prosecutor, or defense may raise the issue of the defendant’s
competence to stand trial. If the issue is raised before the trial has
commenced, the court shall hold a hearing on the issue as provided in
this section. If the issue is raised after the trial has commenced, the
court shall hold a hearing on the issue only for good cause shown or
on the court’s own motion.

R.C. 2945.37(B). “In assessing whether to order such a hearing, the trial court

should consider ‘“(1) doubts expressed by counsel as to the defendant’s

competence, (2) evidence of irrational behavior, (3) the defendant’s demeanor at

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trial, and (4) prior medical opinion relating to competence to stand trial.”’”

Swoveland at ¶ 26, quoting State v. Hartman, 174 Ohio App.3d 244, 2007-Ohio-

6555, ¶ 16 (3d Dist.), quoting State v. Rubenstein, 40 Ohio App.3d 57, 60-61 (8th

Dist.1987).

{¶8} “‘The constitutional standard for assessing a defendant’s competency

to enter a guilty plea is the same as that for determining his competency to stand

trial.’” Id. at ¶ 27, quoting State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, ¶ 56, reconsideration granted in part on other grounds, 147 Ohio St.3d 1438,

2016-Ohio-7677, citing Godinez v. Moran, 509 U.S. 389, 398-399, 113 S.Ct. 2680

(1993). “‘The defendant must have a “‘sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding’ and [have] ‘a rational as

well as factual understanding of the proceedings against him.’”’” Id., quoting

Montgomery at ¶ 56, quoting Godinez at 396, quoting Dusky v. United States, 362

U.S. 402, 80 S.Ct. 788 (1960).

{¶9} In this case, there is no dispute that Purdy’s competency was not raised

prior to the change-of-plea hearing. Rather, Purdy contends that the trial court

abused its discretion by failing to sua sponte order a hearing regarding his

competency based on the evidence revealed at the change-of-plea hearing that he

suffered a traumatic-brain injury during his military service in Afghanistan.

Particularly, Purdy contends that the record contains sufficient indicia of

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incompetence based on his exchange with the trial court during which he informed

the trial court that he was unable “to pass a physical for a nursing degree” as a result

of his brain injury. (Appellant’s Brief at 9).

{¶10} “It is now well established, however, that having a mental illness or

taking medications to treat a mental illness, does not equate with a finding of legal

incompetency.” Prophet, 2015-Ohio-4997, ¶ 21, citing State v. Berry, 72 Ohio St.3d

354, 362 (1995), State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 71, State

v. Bock, 28 Ohio St.3d 108, 110 (1986), and R.C. 2945.37(F). See also State v.

Whitling, 12th Dist. No. CA2016-10-202, 2018-Ohio-1360, ¶ 42 (Piper, J.,

dissenting) (acknowledging that “[p]ast brain injury has been determined to be

insufficient indicia of incompetency and the failure to hold a hearing was

harmless”), citing Eley v. Bagley, 604 F.3d 958, 966-967 (6th Cir.2010).

{¶11} Based on our review of the record, the trial court did not act

unreasonably, arbitrarily, or unconscionably by failing to sua sponte order a hearing

regarding Purdy’s competency because there is insufficient indicia of incompetence.

Accord Swoveland, 2018-Ohio-2875, at ¶ 31. Indeed, there is no evidence in the

record that Purdy behaved irrationally in the courtroom or that there is a prior

medical opinion relating to Purdy’s competency to stand trial. See id. Furthermore,

neither Purdy’s trial counsel nor Purdy expressed doubts as to his competence.

Importantly, the record reflects that the trial court conducted a further exchange with

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Purdy regarding his brain injury during which the trial court concluded that the brain

injury did not impact Purdy’s competency. Specifically, during that exchange,

Purdy informed the trial court that he did not “believe” that his brain injury “is to

blame for” his conduct and that he “did not try to plea [sic] insanity or anything.”

(July 19, 2021 Tr. at 41-42).

{¶12} Moreover, beyond the factors that the trial court should consider when

determining whether to order a competency hearing, there is no evidence in the

record that Purdy was incompetent. That is, there is no evidence in the record

reflecting that Purdy did not have a sufficient present ability to consult with his trial

attorney with a reasonable degree of rational understanding and no evidence that

Purdy did not have a rational and factual understanding of the proceedings against

him. Accord Swoveland at ¶ 34, citing State v. Ferguson, 2d Dist. Montgomery No.

27325, 2018-Ohio-987, ¶ 18, citing State v. Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914, ¶ 32, citing Berry at 359 and Dusky, 362 U.S. at 402.

{¶13} Specifically, during the change-of-plea hearing, Purdy appropriately

responded to the trial court’s colloquy. See Prophet, 2015-Ohio-4997, at ¶ 19, citing

State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, ¶ 38. In particular, Purdy

declared that he understood the nature of the charges against him; that he had an

opportunity to review and discuss those charges with his trial counsel; that he was

satisfied with his trial counsel’s representation; and that he was not under the

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influence of drugs or alcohol. Likewise, Purdy executed the negotiated-plea

agreement reflecting the same. Accord Swoveland at ¶ 35, citing Shepherd, 2009-

Ohio-3317, at ¶ 12.

{¶14} For these reasons, we conclude that the trial court did not abuse its

discretion by failing to sua sponte order a hearing regarding Purdy’s competency.

{¶15} Thus, Purdy’s first assignment of error is overruled.

Assignment of Error No. II

Defendant was provided ineffective assistance of counsel when
Defendant’s attorney failed to request a competency evaluation
prior to plea change, or any sort of expert evaluation prior to
sentencing.

{¶16} In his second assignment of error, Purdy argues that his trial counsel

was ineffective for failing to request a hearing regarding his competency.

Standard of Review

{¶17} 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, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). 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 the

defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992),

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citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Strickland, 466 U.S.

at 687.

Analysis

{¶18} Based on our conclusion in Purdy’s first assignment of error, we reject

Purdy’s ineffective-assistance-of-counsel argument. That is, Purdy cannot show

that his trial counsel’s performance was deficient or unreasonable under the

circumstances because, as we concluded under Purdy’s first assignment of error,

there is insufficient indicia in the record demonstrating that the trial court should

have ordered a competency hearing or that Purdy was incompetent.

{¶19} Therefore, Purdy’s second assignment of error is 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

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

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