State v. Nickoson

[Cite as State v. Nickoson, 2023-Ohio-3755.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2023-A-0028

Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas

ZACHARY S. NICKOSON,
Trial Court No. 2022 CR 00585
Defendant-Appellant.

OPINION

Decided: October 16, 2023
Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Christopher R. Fortunato,
Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-
Appellee).

Margaret Brunarski, Ashtabula County Public Defender, and Michael J. Ledenko,
Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For
Defendant-Appellant).

JOHN J. EKLUND, P.J.

{¶1} Appellant, Zachary Nickoson, appeals his conviction upon his guilty plea in

the Ashtabula County Court of Common Pleas for two counts of Rape, first-degree

felonies in violation of R.C. 2907.02. Appellant has raised one assignment of error arguing

that trial counsel failed to request a competency and sanity evaluation for appellant and

that this failure constituted ineffective assistance of counsel.

{¶2} Having reviewed the record and the applicable caselaw, we find appellant’s

assignment of error is without merit. Nothing in the record suggests appellant was
incompetent to enter his plea, nor is there a basis to believe appellant was not sane at

the time he committed the offense.

{¶3} Therefore, we affirm the judgment of the Ashtabula County Court of

Common Pleas.

Substantive and Procedural History

{¶4} On December 5, 2022, appellant was indicted on two counts of Rape, first-

degree felonies in violation of R.C. 2907.02. Both counts contained sexually violent

predator specifications pursuant to R.C. 2941.148(A).

{¶5} Appellant entered a plea of not guilty and initially received court appointed

counsel through the Ashtabula County Public Defender’s office. Appellant’s counsel

requested discovery and attended a pretrial conference on February 15, 2023. On March

1, 2023, appellant retained private counsel who requested discovery materials.

{¶6} On April 13, 2023, appellant entered a guilty plea. Pursuant to the

agreement with the State, the State amended the charges in the indictment to remove

references to the victims’ ages and to dismiss the sexually violent predator specifications.

The State and appellant recommended a stipulated sentence of six years on each count,

to be run consecutively.

{¶7} At the plea hearing, the trial court asked appellant how old he was and what

his highest level of education was. Appellant said he was 21 and had graduated from high

school. Appellant also read each paragraph of the plea agreement out loud to the trial

court. After each paragraph, the judge asked if appellant had any questions. The trial

court proceeded to sentencing and adopted the stipulated sentence. During the plea

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hearing, there was no discussion about appellant’s competency to enter his plea

knowingly, intelligently, and voluntarily.

{¶8} Appellant timely filed this appeal raising one assignment of error.

Assignment of Error and Analysis

{¶9} Appellant’s sole assignment of error states:

{¶10} “Defendant-Appellant Zachary Nickoson received ineffective assistance of

trial counsel by failing to request necessary mental status evaluations.”

{¶11} Appellant argues trial counsel was ineffective because counsel failed to file

a motion to determine whether appellant was competent to stand trial or determine if he

was sane at the time of the offense. He claims this failure prejudiced him because trial

counsel allowed appellant to enter a guilty plea rather than entering a plea of not guilty

by reason of insanity or allowing appellant to receive necessary treatment to restore his

competency.

{¶12} “[A]n appellant's plea of guilty waives his or her right to assert an ineffective

assistance claim unless counsel's errors affected the knowing and voluntary character of

the plea.” State v. Green, 11th Dist. Trumbull No. 2017-T-0073, 2018-Ohio-3536, ¶ 19.

{¶13} We assess an ineffective assistance of counsel claim, for “‘whether

counsel's conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.’” State v. Story, 11th Dist.

Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting Strickland v. Washington,

466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant must

demonstrate (1) his counsel was deficient in some aspect of his representation, and (2)

there is a reasonable probability, were it not for counsel's errors, the result of the

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proceedings would have been different. Strickland, at 669. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. A failure to “satisfy one

prong of the Strickland test negates a court’s need to consider the other.” State v.

Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland, at

697.

{¶14} An appellant “must be able to demonstrate that the attorney made errors so

serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth

Amendment, and that he was prejudiced by the deficient performance.” Story, at ¶ 49,

quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42.

Ohio courts presume that every properly licensed attorney is competent, and therefore a

defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d

1128 (1985). “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.” State v.

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable trial tactics generally

do not constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72,

85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of

ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.

Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.

{¶15} “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.” State

v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 56. “A defendant

is rebuttably presumed to be competent to stand trial.” State v. Lawson, 165 Ohio St.3d

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445, 2021-Ohio-3566, 179 N.E.3d 1216, ¶ 48. A defendant is incompetent if he “is

incapable of understanding the nature and objective of the proceedings against [him] or

of assisting in [his] defense.” R.C. 2945.37(G). When raised, the trial court must hold a

competency hearing. R.C. 2945.37.

{¶16} In State v. Gooden, 3rd Dist. Marion No. 9-06-17, 2006-Ohio-5387, cited by

appellant, the defendant argued trial counsel rendered ineffective assistance because

counsel allowed him to plead guilty and did not request a competency evaluation under

R.C. 2945.371. After his guilty plea, the defendant filed a pro se motion requesting that

he be sentenced to death upon learning the prosecution recommended a prison sentence

of 13 years and two months. Id. at ¶ 25.

{¶17} The court of appeals acknowledged the questionable nature of the pro se

motion, but concluded there was no additional evidence in the record to establish the

need for a competency evaluation. Id. at ¶ 26. The Third District said “the trial court, which

was particularly well-positioned to observe [the defendant’s] demeanor and personally

addressed [the defendant] at three separate hearings, did not at any time express

concerns on the record regarding [the defendant’s] mental competence.” Id. Therefore,

the court declined to find ineffective assistance of counsel. Id; State v. McNeir, 8th Dist.

Cuyahoga No. 105417, 2018-Ohio-91, ¶ 28 (Trial court’s conclusion that the defendant’s

confusion was a ruse did not result in error for failure to hold competency hearing where

there was “nothing remaining in the record to show otherwise[.]”).

{¶18} As in Gooden, here the trial court was in the best position to observe

appellant’s demeanor and was able to personally address him. The trial court did not

express any concern about appellant’s competency to enter his plea or his sanity. Further,

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there is nothing in the record before us which would suggest that appellant was not

competent to enter his plea or was not sane at the time of his offense. Indeed, appellant’s

brief does not even suggest a basis for why we ought to conclude appellant was not

competent to enter his plea or sane at the time of his offense. Appellant has failed to

demonstrate that trial counsel rendered ineffective assistance of counsel.

{¶19} Accordingly, appellant’s sole assignment of error is without merit.

{¶20} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

EUGENE A. LUCCI, J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-A-0028