[Cite as In re D.L., 2017-Ohio-2823.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                  JUDGES:
IN THE MATTER OF:                                 Hon. William B. Hoffman, P. J.
                                                  Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
        D.L.
                                                  Case No. 2016 CA 00125

        MINOR CHILD                               OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No. 2015
                                               JCR 00693


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 15, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                MICHAEL P. WALTON
PROSECUTING ATTORNEY                           ASSISTANT PUBLIC DEFENDER
RONALD MARK CALDWELL                           250 East Broad Street
ASSISTANT PROSECUTOR                           Suite 1400
110 Central Plaza South, Suite 510             Columbus, Ohio 43215
Canton, Ohio 44702-0049
Stark County, Case No. 2016 CA 00125                                                       2

Wise, John, J.

          {¶1}    Appellant D.L., a juvenile, appeals his adjudication, in the Stark County

    Court of Common Pleas, Juvenile Division, for delinquency by reason of gross sexual

    imposition. Appellee is the State of Ohio. The relevant procedural facts leading to this

    appeal are as follows.1

          {¶2}    On April 24, 2015, a juvenile complaint was filed in Stark County alleging

    Appellant D.L., then a 15-year-old male, was delinquent via the commission of gross

    sexual imposition (R.C. 2907.05(A)(4)), a felony of the third degree if committed by an

    adult. According to the complaint, brought under juvenile court case number 2015-JCR-

    00693, appellant was fourteen at the time of the offense, and the victim was a ten-year-

    old female.

          {¶3}    Subsequently, appellant was also the subject of a delinquency complaint

    for allegedly violating a prior court order ("VIPCO"), under juvenile court case number

    2015-JCR-01382. The two cases were combined for economy of adjudication and

    disposition, although 2015-JCR-01382 is not specifically referenced in the underlying

    notice of appeal.

          {¶4}    Appellant initially entered pleas of not true.

          {¶5}    On May 22, 2015, during pretrial proceedings, appellant’s trial counsel

    requested a competency evaluation for his client. The juvenile court granted the request.

    Psychologist Colin Christensen, Ph.D., subsequently conducted appellant’s competency

    evaluation.




1   A detailed statement of the facts underlying the delinquency complaint against
appellant is not necessary for our disposition of the present appeal.
Stark County, Case No. 2016 CA 00125                                                        3

      {¶6}   In his ensuing report, Dr. Christensen discussed inter alia appellant’s

significant mental health history, medications, and treatment. He noted appellant’s

existing diagnoses included, but were not limited to, autism spectrum disorder,

posttraumatic stress disorder, Asperger's disorder, dysthymia, ADHD, adjustment

disorder, and anxiety disorder. See Competency Report and Evaluation, July 10, 2015,

State's Exh. 5, at 3. Dr. Christensen also determined that appellant sometimes

demonstrated a "lack of common sense," but displayed above-average intelligence. See

Evaluation at 4. Dr. Christensen further concluded that appellant was not competent to

stand trial in the juvenile court at that time, but in his professional opinion it was “likely

that [appellant] could attain competency to stand trial within six months in a non-

residential setting." See Evaluation at 6-7 (emphases deleted). The recommended

competency attainment services included education regarding the seriousness of the

charges, the roles of the judge and the attorneys, appreciation of the consequences of

the charges and future adjudication, and decision-making as to plea bargaining. Id. at

7.

      {¶7}   On July 20, 2015, based upon a stipulation to the aforesaid report, the

juvenile court ordered that appellant undergo competency attainment services, and that

periodic review take place of the progress of these services. Accordingly, Kimberly

Genis, M.Ed., who is employed by the juvenile court to provide attainment and/or

restorative services, including competency attainment, conducted nine sessions with

appellant over a three-month period. Genis also submitted periodic reports to the court,

the last of which, submitted October 29, 2015, reached the following conclusion: "It is

through review of created modules, discussion, questioning, a courtroom tour and
Stark County, Case No. 2016 CA 00125                                                     4


quizzes that I have come to the conclusion that [appellant] has successfully achieved the

goals of the attainment plan." See State’s Exh. 8.

      {¶8}   The case was then set for a pre-trial to the senior magistrate on November

16, 2015. At said hearing, the State asked the court to proceed to an adjudicatory hearing

based upon Genis’s aforesaid report that essentially concluded attainment had been

successful. However, appellant’s defense counsel disputed proceeding to adjudication,

and instead requested another competency evaluation. Defense counsel urged that

since Genis's role was to provide attainment services, not to determine competency, an

additional qualified competency review was needed, including a review of the attainment

service reports. Tr. at 8. The senior magistrate ultimately did not grant counsel's request

for a new evaluation, but he scheduled an evidentiary hearing before the juvenile judge.

See Magistrate’s Order, Nov. 18, 2015.

      {¶9}   After one continuance, the evidentiary hearing regarding competency went

forward on December 22, 2015. The State called Ms. Genis as a witness, while appellant

called Dr. Christensen. Appellant also called Clorinda Brace, service coordinator for the

Tuscarawas County Family Children's First Council, and Jamar Wedeaamn, appellant’s

direct care mentor from Pathway Caring for Children.

      {¶10} Via a judgment entry issued the day after the competency hearing, the

juvenile court found appellant competent for purposes of adjudication; i.e., it concluded

appellant had “attained a necessary level of competency to stand trial on this offense."

      {¶11} The matter proceeded to an additional pre-trial hearing before a magistrate

on February 1, 2016. The court was informed at that time that appellant would be

entering an admission to the gross sexual imposition complaint. After reciting the rights
Stark County, Case No. 2016 CA 00125                                                  5


appellant would be waiving by entering an admission, the court accepted appellant’s plea

of true.

      {¶12} Upon the completion of a risk assessment, the juvenile court conducted a

dispositional hearing on May 9, 2016. Following said hearing, appellant was committed

to the Ohio Department of Youth Services for a minimum period of six months and a

maximum period until his twenty-first birthday. The court also classified appellant as a

Tier I juvenile sex offender. A final judgment entry was filed on May 19, 2016.

      {¶13} On June 17, 2016, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

      {¶14} “I. D.L. WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW WHEN HE

WAS ADJUDICATED DELINQUENT WHILE HE WAS INCOMPETENT, IN VIOLATION

OF R.C. 2152.51; JUV.R. 29; THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

U.S. CONSTITUTION; AND, ARTICLE I, SECTION 16, OHIO CONSTITUTION.”

                                           I.

      {¶15} In his sole Assignment of Error, appellant contends he was deprived of his

constitutional rights when he was adjudicated a delinquent child. We disagree.

      {¶16} The United States Supreme Court has long held that due process

protections must be afforded to children. In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428,

18 L.Ed.2d 527 (1967). Furthermore, it is well-established that an incompetent defendant

may not be convicted of a crime, and this fundamental right extends to juvenile

proceedings. See In re Williams, 116 Ohio App.3d 237, 241, 687 N.E.2d 507 (2nd Dist.

Montgomery 1997). Juv.R. 29(D)(1) generally prohibits a juvenile court from accepting

an admission to delinquency allegations without ensuring that the person is "making the
Stark County, Case No. 2016 CA 00125                                                         6


admission voluntarily with understanding of the nature of the allegations and the

consequences of the admission[.]"

      {¶17} With the passage of 2011 H.B. 86, the Ohio General Assembly enacted

statutory provisions to govern juvenile competency determinations. In re D.T.W., 12th

Dist. Butler No. CA2014–09–198, 2015-Ohio-2317, ¶ 15. In particular, R.C.

2152.51(A)(1) states in pertinent part: “ *** A child is incompetent if, due to mental illness,

due to developmental disability, or otherwise due to a lack of mental capacity, the child

is presently incapable of understanding the nature and objective of proceedings against

the child or of assisting in the child's defense.” See, also, Juv.R. 32(A)(4).

      {¶18} Furthermore, R.C. 2152.54(A) states as follows:

      {¶19} “An evaluation of a child who does not appear to the court to have at least

a moderate level of intellectual disability shall be made by an evaluator who is one of the

following:

      {¶20} “(1) A professional employed by a psychiatric facility or center certified by

the department of mental health and addiction services to provide forensic services and

appointed by the director of the facility or center to conduct the evaluation;

      {¶21} “(2) A psychiatrist or a licensed clinical psychologist who satisfies the criteria

of division (I) of section 5122.01 of the Revised Code and has specialized education,

training, or experience in forensic evaluations of children or adolescents.”

      {¶22} The Ohio Supreme Court has determined that “[i]ncompetency must not be

equated with mere mental or emotional instability or even with outright insanity. A

defendant may be emotionally disturbed or even psychotic and still be capable of

understanding the charges against him and of assisting his counsel.” State v. Bock, 28
Stark County, Case No. 2016 CA 00125                                                    7


Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). Appellate review of a trial court's

determination of competency to stand trial is under an abuse of discretion standard. See

State v. Vrabel, 99 Ohio St.3d 184, 2003–Ohio–3193, ¶ 33. Furthermore, a trial court's

finding that a defendant is competent to stand trial will not be disturbed when there is

some reliable and credible evidence supporting that finding. State v. Were, 118 Ohio

St.3d 448, 2008-Ohio-2762, ¶ 46.

                         Dr. Christensen Report and Testimony

      {¶23} As noted in our previous recitation of the procedural facts, Dr. Christensen

in his report discussed appellant’s mental health history, medications, and treatment. Dr.

Christensen determined that, while appellant displayed above-average intelligence, he

sometimes demonstrated a "lack of common sense," could not consistently identify the

role of the prosecutor, defendant, guardian ad litem, or some aspects of the process of

determining culpability, and would benefit from being trained on the role of court

personnel and taught effective decision-making strategies. Evaluation at 4-6. However,

Dr. Christensen concluded that appellant would “likely” be competent if the focal points

set forth in the initial evaluation were addressed.

      {¶24} Dr. Christensen also testified at the December 22, 2015 hearing. In addition

to detailing his process for evaluating appellant, he explained inter alia the impact of

appellant’s Asperger's diagnosis. Tr., Dec. 22, 2015, at 32-34. Specifically, Dr.

Christensen testified that, although D.L. had a good vocabulary and above-average IQ,

he was immature and demonstrated a lack of common sense and poor decision-making

ability. Id. at 33-36, 41. He opined that “common sense” was something people use to

make good decisions, and that good decision-making was not one of appellant’s
Stark County, Case No. 2016 CA 00125                                                    8

strengths. Id. at 39-40. When asked if he was “able to say [appellant] is restored without

reevaluating him," Dr. Christensen replied in the negative. Id. at 40.

                                     Kimberly Genis

      {¶25} Kimberly Genis, who provided attainment services for appellant, is the

mental health coordinator for Stark County Family Court and a part-time counselor at

Northeast Ohio Behavioral Health. She has a master's degree in mental health

counseling and is a licensed counselor who is required to earn thirty hours of continuing

education every two years to maintain a current license. Tr., Dec. 22, 2015, at 5-7. She

indicated she had obtained four hours of training on administering attainment services,

although those hours did not count towards her thirty-hour continuing education

requirement. Id. at 19-20. After nine attainment sessions with appellant, Genis was able

to determine that appellant had achieved all of the goals set forth in the competency

evaluation, i.e., understanding the charges, pleas, possible consequences, courtroom

personnel, courtroom proceedings, trial process, giving testimony, plea bargaining, and

understanding and appreciating communication with his attorney. Id. at 9-12, 14-19. It is

undisputed her assessment was that the attainment services were successful, but she

acknowledged that she was not qualified to evaluate appellant for competency. Id. at 26.

                                     Clorinda Brace

      {¶26} At the December 22, 2015 hearing, appellant called Clorinda Brace, LSW,

the service coordinator for the Tuscarawas County Family Children's First Council.

Brace, who holds a master’s degree in guidance and counseling, met with appellant in

her capacity as a service coordinator on either a monthly or bi-weekly basis from May

through September 2015. She testified that appellant had had conversations with her
Stark County, Case No. 2016 CA 00125                                                    9


that “did not make sense” and that his level of understanding of right from wrong

fluctuated. Tr., Dec. 22, 2015, at 47-48. She stated that he did not fully understand the

consequences of his actions and that he would sometimes mentally get stuck in “fantasy

type situations.” Id. at 48-49. She similarly explained that appellant would sometimes

describe having interactions with people that she knew did not exist and that she would

have trouble convincing him that his interactions with them were not real. Id. at 49.

                                   Jamar Wedeaamn

      {¶27} Appellant also called Jamar Wedeaamn, his direct care mentor from

Pathway Caring for Children. Wedeaamn had been in a mentor role, once a week, for

approximately two to three years, where he observed that appellant showed interest in

video games and fantasy worlds. Wedeaamn described some of appellant’s descriptions

of his unusual thoughts. Tr. at 54-60. For example, appellant told Wedeaamn about being

part of a group of people who are “here to save the planet,” or so-called "time-line

people," the details of which he said he could not fully disclose without being in danger.

Id. at 55-56. Appellant also believed he had the ability to go into the future. Id. at 57.

Although Wedeaamn felt that appellant could differentiate video games from “real life,”

he expressed general concern about appellant’s perception of reality. Id. at 55-59. He

also noted that he believed appellant knew right from wrong, but that he did not always

understand the consequences of his actions or decision-making. Id. at 60. On cross-

examination, Wedeaamn described appellant as “very intelligent.” Id. at 61.
Stark County, Case No. 2016 CA 00125                                                     10

                         Appellant’s Colloquy with Juvenile Court

      {¶28} Although it occurred subsequent to the December 22, 2015 evidentiary

hearing regarding competency, appellant also points out the following exchange during

the February 1, 2016 plea:

      {¶29} “Court: *** [D.L.] while you're still standing here talking to me, you know a

lot of that was kind of the legal phrasing of, of, of the law and sometimes legal phrasing

is meant to confuse the best of us. But I want to be clear and you, you tell me in your

own words what it is that you, you did um *** during the course of that overnight with the

victim.

      {¶30} “D.L.: I can't really remember much because my memory gets a little foggy

after some nights. It's something I'm trying to get through. I'm still trying to remember

what happened as I went through.

      {¶31} “Court: Okay, you just indicated that you admitted to gross sexual

imposition.

      {¶32} “D.L.: Yes, but some nights I will forget some things. Sometimes ***.

      {¶33} “Court: What do you believe you could have done then?

      {¶34} “D.L.: Uh *** it's hard to say for me.

      {¶35} “Court: If it's hard to say for you right here at this moment, it's not going to

go well for you in the risk assessment. You think this is an uncomfortable ***.

      {¶36} “D.L.: Right.

      {¶37} “Court: Moment but I'm actually trying to help you.

      {¶38} “D.L.: I know ma'am. It's just, it's sometimes hard for me to remember. Like

*** things really far back.
Stark County, Case No. 2016 CA 00125                                                     11

       {¶39} “Court: If you can't face what you did, treatments (sic) going to become

difficult.

       {¶40} “D.L.: I know and I'm trying to be.

       {¶41} “Court: Do you want to give it one more shot? Your, your attorney can't help

you because she wasn't there.

       {¶42} “D.L.: I understand.

       {¶43} “Court: And, it's up to you. Do you want to tell me what it is that you believe

that you did that you're admitting to today?

       {¶44} “D.L.: I believe that it was in that paper I *** might have done.

       {¶45} “Court: What's in that paper?

       {¶46} “D.L.: That I touched her butt and her breasts.”

       {¶47} Tr., Feb. 1, 2016, at 8-10.

                                           Analysis

       {¶48} "Once the juvenile court has determined that an offender is not competent

to stand trial * * * a presumption of incompetence arises, which the state must rebut by

coming forward with evidence of competency." In re Braden, 176 Ohio App.3d 616, 2008-

Ohio-2981, ¶ 12 (1st Dist. Hamilton). But see R.C. 2152.52(A)(2). Appellant in the case

sub judice does not dispute that Dr. Christensen originally found him incompetent, but

restorable. Nonetheless, appellant maintains that although he was given attainment

services, the State never overcame the presumption that he was incompetent. Appellant

further urges that the plea colloquy of February 1, 2016, supra, demonstrates that he did

not understand the nature of the allegations against him or the consequences of his plea.

In essence, we find the primary issue to be decided is whether under such circumstances
Stark County, Case No. 2016 CA 00125                                                    12


the juvenile court violated appellant’s right to due process by adjudicating him delinquent

despite failing to order a second competency evaluation.

      {¶49} The Ohio Supreme Court has recognized that deference on competency

issues should be given to those who see and hear what goes on in the courtroom. See

State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, ¶ 50. Furthermore, it is not

necessary for a juvenile court “to obtain a majority of experts in favor of competency or

incompetency.” In re J.B., 12th Dist. Butler No. CA2004–09–226, 2005-Ohio-7029, ¶ 36.

The relevant question is “whether there was sufficient evidence before the court for it to

make a well-informed decision regarding appellant's competency.” Id.

      {¶50} In this instance, Dr. Christensen had indicated via his expert opinion that

appellant would “likely” be competent if all of the attainment goals set forth in the

evaluation were addressed. Ms. Genis then built upon Dr. Christensen’s foundation by

working with appellant on these goals, and the record indicates she was confident that

she had imparted to appellant an understanding and appreciation of the requisite

concepts. While the evidence offered by appellant via Ms. Brace and Mr. Wedeaamn

bore on appellant’s general mental condition, it did not specifically expound upon his

understanding of the competency concepts and factors, and it would not have

necessarily outweighed the juvenile court’s reliance on the input of Dr. Christensen and

Ms. Genis. We note R.C. 2152.59(H)(1) gives a juvenile court discretion on ordering a

new competency evaluation to assist in its determination following an attainment

services report. While ideally it may have been more illuminating on the competency

issue and the expressed “common sense” concerns to have secured a follow-up

evaluation by Dr. Christensen, we hesitate to herein formulate a bright-line rule
Stark County, Case No. 2016 CA 00125                                                  13


mandating this additional step, given the discretion we must afford to the juvenile court

in addressing delinquency and juvenile competency matters.

      {¶51} Accordingly, upon review, we find no abuse of discretion or violation of due

process in the juvenile court’s procedure and implicit determination that appellant was

capable of understanding the nature and objective of the proceedings against him and

of assisting in his defense. R.C. 2152.51(A)(1), supra.

      {¶52} Appellant's sole Assignment of Error is therefore overruled.

      {¶53} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.



By: Wise, John, J.

Hoffman, P. J., and

Baldwin, J., concur.




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