[Cite as State v. Camacho, 2014-Ohio-492.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99712




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    ELIAS CAMACHO
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                             Case Nos. CR-563517 and CR-567583

        BEFORE: E.T. Gallagher, J., Stewart, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: February 13, 2014
ATTORNEY FOR APPELLANT

Jerome Emoff
55 Public Square, Suite 950
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Erin Stone
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

         {¶1} Defendant-appellant, Elias Camacho (“Camacho”), appeals the sentence he

received for a third-degree burglary conviction. We find no merit to the appeal and

affirm the trial court’s judgment.

         {¶2} In June 2012, Camacho was indicted on multiple counts in two separate

cases.    In CR-563517, Camacho was charged with burglary, theft, receiving stolen

property, possession of criminal tools, and criminal trespass. The burglary charge was a

second-degree felony.       In CR-567583, Camacho was charged with burglary, motor

vehicle theft, and theft. The burglary charge in this case was also a second-degree

felony.

         {¶3} In August 2012, at defense counsel’s request, the court referred Camacho for

a mental health evaluation to determine whether he was eligible for transfer to the Mental

Health Developmental Disability Court (“mental health docket”), formerly known as “the

Mental Health Court Docket.” The court’s journal entry dated August 14, 2012, states in

relevant part:

         Pretrial continued * * * at the request of defendant. Reason for
         continuance: Defendant may be eligible for mental health court docket[.]
         Defendant is referred to court psychiatric clinic * * * in accordance with the
         provisions of the Ohio Revised Code, 2947.06(B) * * * for the purpose of
         determining the disposition of the case: eligibility for transfer to the mental
         health court.
Although the docket does not reflect that a mental health evaluation for transfer eligibility

was completed and/or addressed, Camacho remained on the regular docket.1

       {¶4} On October 4, 2012, Camacho pleaded guilty in CR-563517 to Count 1,

which alleged burglary as a second-degree felony and was amended to burglary as a

third-degree felony.    The remaining counts were dismissed.        On January 26, 2013,

Camacho pleaded guilty in CR-567583 to all counts in the indictment, including burglary,

a second-degree felony. After receiving a presentence investigation report (“PSI”) in

February 2013, the court sentenced Camacho to two years in prison for the burglary count

in CR-563517. The court sentenced Camacho to four years in CR-567583 and ordered

the two sentences to be served consecutively. Camacho now appeals and raises two

assignments of error.

                                Mental Health Evaluation

       {¶5} In the first assignment of error, Camacho argues his case should be remanded

to the trial court with instructions to comply with R.C. 2947.06 so that the trial court may

give “due consideration to the results of the [mental] evaluation in terms of his sentence.”

 (Emphasis added.)

       {¶6} R.C. 2947.06(B) governs testimony in mitigation of sentence, PSI reports,

and psychological reports completed for sentencing purposes.              R.C. 2947.06(B)

authorizes a court, in its discretion to appoint up to two psychologists or psychiatrists “to

make reports concerning the defendant that the court requires for the purpose of


       1  The Cuyahoga County Common Pleas Court’s psychiatric clinic
maintained a copy of the evaluation that was completed on Sept. 11, 2012.
determining the disposition of the case.”      The request for psychological reports for

sentencing purposes is not mandatory. State v. Ellis, 8th Dist. Cuyahoga No. 98538,

2013-Ohio-1184, ¶ 43.

       {¶7} If the court requests a psychological report pursuant to R.C. 2947.06(B), the

psychologist’s or psychiatrist’s report must “be made in writing, in open court, and in the

presence of the defendant, except in misdemeanor cases in which sentence may be

pronounced in the absence of the defendant.” Camacho contends that because the court

never discussed Camacho’s mental health evaluation regarding transfer eligibility on the

record and in his presence, the court violated R.C. 2947.06(B).

       {¶8} As previously stated, the trial court, through its journal entry dated August 14,

2012, referred Camacho for a mental health evaluation to determine his eligibility for

transfer to the mental health docket. Despite the trial court’s reference to R.C. 2947.06(B)

in its journal entry, Local Rule 30.1 of the Court of Common Please of Cuyahoga County,

General Division, governs the assignment of criminal defendants to the mental health

docket.   Pursuant to Loc. R. 30.1, the administrative judge may transfer a criminal

defendant from the regular docket to the mental health docket, if a psychologist or

psychiatrist determines the defendant is eligible for the mental health docket based on “a

confirmed serious mental illness” or if the defendant “is developmentally disabled.” The

trial court never requested a psychological report for sentencing purposes.

       {¶9} To be clear, R.C. 2947.06(B) applies only to psychological reports prepared

for sentencing purposes. Indeed, this section is included in R.C. Chapter 2947, which

governs final judgments and sentencing.         To hold that the requirements of R.C.
2947.06(B) are applicable to mental health evaluations requested pursuant to Loc.R. 30.1

would place an inapplicable sentencing requirement on trial courts by requiring them to

review evaluations completed for transfer eligibility at sentencing hearings where PSI

reports, mitigation of sentence reports, victim impact statements, and the defendant’s own

statements provide the information necessary to fashion an appropriate sentence.

       {¶10} The first assignment of error is overruled.

                           Higher Tier Third-Degree Felonies

       {¶11} In the second assignment of error, Camacho argues the trial court erred in

sentencing him within the higher tier third-degree felony range because there was no

evidence that Camacho had prior burglary convictions that would enhance his penalty.

He contends the trial court violated his right to due process by improperly assuming that

he qualified for higher tier third-degree felony sentencing because of his juvenile record.

       {¶12} R.C. 2929.14(A)(3)(a) provides that, for certain third-degree felonies

including burglary, “the prison term shall be twelve, eighteen, twenty-four, thirty,

thirty-six, forty-two, forty-eight, fifty-four, or sixty months * * * if the offender

previously has been convicted of or pleaded guilty in two or more separate proceedings to

two or more” burglary charges. Otherwise, the prison term for a third-degree felony is

capped at three years. R.C. 2929.14(A)(3)(b).

       {¶13} In CR-563517, Camacho was convicted of burglary, a third-degree felony.

At the plea hearing, the court advised Camacho that by pleading guilty to this charge he

faced a potential penalty of one to five years in prison, due to his extensive juvenile

record. Yet, the court only sentenced him to two years; a sentence that falls within the
lower tier punishment for a third-degree felony. Therefore, Camacho did not suffer any

prejudice, even if the court had improperly considered his juvenile record.

       {¶14} Moreover, the imposition of a sentence enhancement under R.C. 2901.08

based on a juvenile defendant’s adjudication does not violate the defendant’s due process

rights. State v. Parker, 8th Dist. Cuyahoga No. 97841, 2012-Ohio-4741, ¶ 25. See also

In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 107. Indeed, R.C.

2901.08(A) provides:

       If a person is alleged to have committed an offense and if the person
       previously has been adjudicated a delinquent child or juvenile traffic
       offender for a violation of a law or ordinance, except as provided in
       division (B) of this section, the adjudication as a delinquent child or as a
       juvenile traffic offender is a conviction for a violation of the law or
       ordinance for purposes of determining the offense with which the person
       should be charged and, if the person is convicted of or pleads guilty to an
       offense, the sentence to be imposed upon the person relative to the
       conviction or guilty plea.

       {¶15} Here, the trial court considered Camacho’s juvenile record, which was

outlined in the PSI, when it selected Camacho’s prison terms and imposed consecutive

sentences. Since Camacho was sentenced to a prison term within the lower tier range for

third-degree burglary felonies, he suffered no prejudice.

       {¶16} Accordingly, we overrule the second assignment of error.

       {¶17} Judgment affirmed.

       It is ordered that appellee recover from appellant 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., CONCURS WITH EILEEN T. GALLAGHER, J. AND
WITH SEPARATE CONCURRING OPINION OF TIM McCORMACK, J.; TIM
McCORMACK, J.,  CONCURS WITH SEPARATE CONCURRING OPINION
ATTACHED.


TIM McCORMACK, J., CONCURRING:

      {¶18} I concur fully with the clearly written majority opinion. I write separately

to respectfully address an omission that does not reflect best practice in the local

procedures.

      {¶19} The trial court properly prepared a pretrial journal entry issued on August

14, 2012, which reads that a referral was made for a mental health evaluation to

determine whether Camacho was eligible for the mental health court docket.        Mental

health referrals can be made at several key times in a trial.   Whether the mental health

referral is made early in the pretrial phase, as in this case for 1) the purposes of

determining whether the accused should be transferred to the mental health docket, or to

2) determine competency to stand trial, or occurs later in the trial for sentencing

disposition, at each stage, the court’s determination of the mental health status of the

accused, based on the evaluation, should be part of the formal record.          We as a
reviewing court are left to question whether the journal silence of the outcome of an

evaluation was purposeful or an oversight.        Either way, the triggering of the central

question of a defendant’s state of mental health needs a response through an open court

journalization.

         {¶20} Loc.R. 30.1 of the Court of Common Pleas of Cuyahoga County, General

Division, does not require an open court response to an initial      journalized order calling

for a mental health evaluation. Conversely, R.C. 2947.06(B), which guides the trial

court’s approach for a mental health evaluation prior to disposition of a case, mandates

that the end result of this report be made in open court, prior to the imposition of

penalties.    To ensure best practice, a thorough and fair process, and to satisfy the

question of a defendant’s mental health status, a reviewing court should be able to clearly

know the finding of the mental health evaluation mandated in the original journalized

order.

         {¶21} Whether the parties through the trial court, or the court on its own initiative,

requests a determination of mental health status, such a request signals the turning on of a

yellow if not red light. R.C. 2947.06(B) mandates an open court answer to the mental

health status question once journalized.     That approach, regardless of the stage of trial,

would serve justice well.         We are now inconsistent in our mental-health-based

procedures.
