[Cite as State v. Bradley, 2013-Ohio-5146.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 13 COA 13
MICHAEL H. BRADLEY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 13 CRB 306


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                        November 20, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

                                               MATTHEW J. MALONE
                                               LAW OFFICES OF MATTHEW J. MALONE
                                               11-1/2 East Second Street
                                               Ashland, Ohio 44805
Ashland County, Case No. 13 COA 13                                                      2

Wise, J.

       {¶1}    Appellant Michael H. Bradley appeals his sentence entered in the Ashland

County Court of Common Pleas on one count of Domestic Violence, in violation of R.C.

§2919.25(A).

       {¶2}    Appellee State of Ohio did not file a response brief in this matter.

                        STATEMENT OF THE FACTS AND CASE

       {¶3}    On March 10, 2010, the Ashland Police Department served a Summons

and Complaint on Defendant-Appellant Michael H. Bradley, charging him with one count

of domestic violence, pursuant to R.C. §2919.25(A), a misdemeanor of the first degree.

       {¶4}    The Complaint alleged:

       {¶5}    “The undersigned issuing officer says that the person whose name

appears above did on the 10th day of March, 2013 at 3:30 PM unlawfully and knowingly

cause or attempt to cause physical harm to a family member or household member to

wit: Mr. Michael Bradley poked his father with a baseball bat and struck his mother in

the left arm after a verbal altercation.” (Complaint and Summons, filed March 11, 2013.)

       {¶6}    At his March 11, 2013 arraignment, Appellant appeared unrepresented by

counsel and entered a plea of no contest to the charge contained in the Summons and

Complaint. (Arraign. T. at 5).      After a brief colloquy with Appellant, the trial court

accepted his no contest plea, found him guilty of domestic violence, and ordered a pre-

sentence investigation. (Arraign. T. at 5-10, 14).

       {¶7}    On April 23, 2013, Appellant appeared for sentencing, again without

counsel. (Sent. T. at 1). The trial court sentenced Appellant to 180 days in the Ashland

County Jail, suspended 150 days while giving credit for time served, placed him on
County County, Case No.                                                                  3


intensive probation for one year, and ordered him to pay a fine of $150 plus court costs.

(Sent. T. at 13-14).

       {¶8}     Appellant now appeals, assigning the following errors for review:

                                ASSIGNMENTS OF ERROR

       {¶9}     “I. THE ASHLAND, OHIO MUNICIPAL COURT ERRED BY NOT

INQUIRING       WHETHER       DEFENDANT-APPELLANT            WAS    ABLE     TO     OBTAIN

COUNSEL AND THEN IMPOSING A SENTENCE OF CONFINEMENT FOR HIS

UNCOUNSELED NO CONTEST PLEA.

       {¶10} “II. THE ASHLAND, OHIO MUNICIPAL COURT ERRED BY NOT

MAKING FURTHER INQUIRY INTO DEFENDANT-APPELLANT'S COMPETENCE

WHERE THERE EXISTED SUFFICIENT INDICIA OF INCOMPETENCE TO ENTER A

PLEA AND THEN BY ACCEPTING DEFENDANT-APPELLANT'S UNCOUNSELED NO

CONTEST PLEA.”

                                             II.

       {¶11} For ease of discussion, we shall address Appellant’s assignments of error

out of order.

       {¶12} In his Second Assignment of Error, Appellant argues that the trial court

erred in not making further inquiry into his competence before accepting his no contest

plea made without legal representation.

       {¶13} The conviction of a defendant who is not competent to enter a plea

violates due process of law. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-

6391, 819 N.E.2d 215, at ¶ 155, citing Drope v. Missouri (1975), 420 U.S. 162, 171, 95

S.Ct. 896, 43 L.Ed.2d 103, and State v. Berry (1995), 72 Ohio St.3d 354, 359, 650
County County, Case No.                                                                     4


N.E.2d 433. A trial court possesses no need to sua sponte inquire into a defendant's

competency unless the record contains “ ‘sufficient indicia of incompetence,’ such that

an inquiry * * * is necessary to ensure the defendant's right to a fair trial.” Berry, 72 Ohio

St.3d at 359, quoting Drope, 420 U.S. at 175; see, also, State v. Ahmed, 103 Ohio St.3d

27, 2004-Ohio-4190, 813 N.E.2d 637, at ¶ 65.However, in the absence of evidence to

the contrary, a criminal defendant is rebuttably presumed competent to enter a guilty

plea. See R.C. 2945.37(G); State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890

N.E.2d 263, at ¶ 45

       {¶14} Pursuant to R.C. 2945.37(G), a defendant is presumed competent to

stand trial unless it is proved by a preponderance of the evidence in a hearing that

because of his present mental condition, he is incapable of understanding the nature

and objective of the proceedings against him or of assisting in his defense. “The test for

competency is whether the defendant has a sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding and whether he has a

rational as well as factual understanding of proceedings against him.” In re Kristopher

F., Stark App. No. 2006CA00312, 2007–Ohio–3259, ¶ 25.

       {¶15} During Appellant’s arraignment, it was explained to the trial court that the

events leading up to the domestic violence charge were brought on by Appellant’s

failure to take his medication and the parents’ efforts to try to make him take such

medication.   A review of the transcript from the arraignment reveals over a dozen

references made regarding Appellant’s failure to take his medication, his mental health,

and the fact that he suffers from schizophrenia.
County County, Case No.                                                                   5


       {¶16} Further, the transcript from the sentencing hearing reveals that the

sentencing hearing had to be postponed due to the fact that Appellant was receiving

treatment in Heartland Behavioral Healthcare center for 40 days. (Sent. T. at 5).

Additionally, much discussion was had regarding Appellant’s mental health, his need for

medication, which would include monthly injections of Haldol, the need for weekly

counseling and monthly psychiatric treatment. (Sent. T. at 7-9) It was also discussed

that Appellant takes Depakote for mood stabilization and Cogentin for the side effects.

(Sent. T. at 10).

       {¶17} Based on the record before us, we find there are sufficient indicia of

incompetency to warrant a hearing on the issue of incompetency. “It is settled law that

‘a person whose mental condition is such that he lacks the capacity to understand the

nature and object of the proceedings against him, to consult with counsel, and to assist

in preparing his defense may not be subjected to a trial.’ ” State v. Rubenstein, 40 Ohio

App.3d 57, 60, 531 N.E.2d 732 (8th Dist.1987), quoting Drope v. Missouri, 420 U.S.

162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

       {¶18} Appellant’s Second Assignment of Error is sustained.

                                             I.

       {¶19} In his First Assignment of Error, Appellant asserts the trial court violated

his Constitutional right to counsel as well his rights under Crim.R. 11 and 44.

Specifically, Appellant submits the trial court violated his rights by failing to appoint an

attorney for him or having him voluntarily, intelligently, and knowingly waive such right;

by accepting his plea without undertaking a Crim.R. 11 colloquy; and by failing to inquire
County County, Case No.                                                                 6


and determine whether Rouse's plea was voluntarily, intelligently, and knowingly

entered.

       {¶20} Crim. R.11 governs pleas and a defendant's rights upon entering a plea as

follows:

       {¶21} “(A) Pleas

       {¶22} “A defendant may plead not guilty, not guilty by reason of insanity, guilty

or, with the consent of the court, no contest. A plea of not guilty by reason of insanity

shall be made in writing by either the defendant or the defendant's attorney. All other

pleas may be made orally. The pleas of not guilty and not guilty by reason of insanity

may be joined. If a defendant refuses to plead, the court shall enter a plea of not guilty

on behalf of the defendant.

       {¶23} “* * *

       {¶24} “(D) Misdemeanor cases involving serious offenses

       {¶25} “In misdemeanor cases involving serious offenses the court may refuse to

accept a plea of guilty or no contest, and shall not accept such plea without first

addressing the defendant personally and informing the defendant of the effect of the

pleas of guilty, no contest, and not guilty and determining that the defendant is making

the plea voluntarily. Where the defendant is unrepresented by counsel the court shall

not accept a plea of guilty or no contest unless the defendant, after being readvised that

he or she has the right to be represented by retained counsel, or pursuant to Crim.R. 44

by appointed counsel, waives this right.

       {¶26} “(E) Misdemeanor cases involving petty offenses
County County, Case No.                                                                     7


       {¶27} “In misdemeanor cases involving petty offenses the court may refuse to

accept a plea of guilty or no contest, and shall not accept such pleas without first

informing the defendant of the effect of the plea of guilty, no contest, and not guilty.” Id.

       {¶28} Crim.R. 2(D) defines a “petty offense” as: “a misdemeanor other than a

serious offense.” “Serious offense” is defined as “any felony, and any misdemeanor for

which the penalty prescribed by law includes confinement for more than six months.”

Crim.R. 2(C).

       {¶29} The offense of domestic violence as charged against Appellant is a first

degree misdemeanor for which the penalty prescribed by law does not include

confinement for more than six months. Thus, the trial court was required to follow the

procedure set forth in Crim.R. 11(E).

       {¶30} A review of the record reveals that the trial court did not inquire of the

Appellant whether he was able to obtain counsel, and if he was unable, whether he

waived the right to appointed counsel.

       {¶31} Based on the foregoing, we find Appellant’s First Assignment of Error well-

taken and sustain same.
County County, Case No.                                                            8


      {¶32} For the foregoing reasons, the decision of the Municipal Court of Ashland

County, Ohio, is reversed and this matter is remanded for further proceedings

consistent with the law and this opinion.



By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

                                            _________________________________
                                            HON. JOHN W. WISE


                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. CRAIG R. BALDWIN


JWW/d 11/04
Ashland County, Case No. 13 COA 13                                                 9


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :
                                             :
       Plaintiff-Appellee                    :
                                             :
-vs-                                         :       JUDGMENT ENTRY
                                             :
MICHAEL H. BRADLEY                           :
                                             :
       Defendant-Appellant                   :       Case No. 13 COA 13




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Ashland County, Ohio, is reversed and remanded for

further proceedings consistent with this opinion.

       Costs assessed to Appellee.




                                             ___________________________________
                                             HON. JOHN W. WISE


                                             ___________________________________
                                             HON. W. SCOTT GWIN


                                             ___________________________________
                                              HON. CRAIG R. BALDWIN
