[Cite as State v. Johnson, 2019-Ohio-4541.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                COLUMBIANA COUNTY

                                          STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                  v.

                                         BOYD JOHNSON,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 18 CO 0030


                                 Criminal Appeal from the
                     Court of Common Pleas of Columbiana County, Ohio
                                  Case No. 2016 CR 456

                                        BEFORE:
                 Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.


                                              JUDGMENT:
                                                Affirmed.


 Atty. Robert Herron, Columbiana County Prosecutor and Atty. Alec A. Beech, Assistant
 Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-
 Appellee

 Atty. Cynthia L. Henry, P.O. Box 4332, Youngstown, Ohio 44515, for Defendant-
 Appellant.
                                                                                       –2–


                                Dated: November 4, 2019


 WAITE, P.J.

       {¶1}   Appellant Boyd Johnson appeals a June 26, 2018 Columbiana County

Common Pleas Court judgment entry convicting him of two counts of aggravated burglary

and two counts of felonious assault.      Appellant argues that the trial court failed to

sufficiently inquire whether his psychotropic medications affected his ability to enter an

intelligent, knowing, and voluntary guilty plea. Appellant also argues that the court failed

to adequately advise him that he would receive a lifetime weapons disability. For the

reasons provided, Appellant’s arguments are without merit and the judgment of the trial

court is affirmed.

                             Factual and Procedural History

       {¶2}   On November 28, 2016, Appellant attempted to break into an apartment

located in East Liverpool, Columbiana County.          Appellant attempted to enter the

apartment using a knife and, at some point, threatened the occupant.              After his

unsuccessful attempt to enter the apartment, he remained at the complex and attempted

to enter a second apartment occupied by two other residents. Although the residents

attempted to barricade their door, Appellant managed to cut the lock with his knife. While

inside, he slashed one of the residents on the arm and breast and stabbed the other

resident through his liver. Appellant then fled the area.

       {¶3}   Apparently, at least some of the incident was captured on videotape,

presumably from a surveillance camera. At some point, law enforcement located and

apprehended Appellant. He confessed to the crime after law enforcement apparently

showed the video of him committing the acts, but claimed that he could not remember



Case No. 18 CO 0030
                                                                                       –3–


anything about the encounter.      Appellant admitted to police that he was under the

influence of alcohol and non-prescription pills at the time.

       {¶4}   On January 11, 2017, Appellant was indicted on two counts of aggravated

burglary, felonies of the first degree in violation of R.C. 2911.11(A)(1), and two counts of

felonious assault, felonies of the second degree in violation of R.C. 2903.11(A)(2). Two

competency evaluations were conducted. Both concluded that Appellant was competent

to stand trial. On March 6, 2019, Appellant pleaded guilty to the offenses as charged. At

the plea hearing, Appellant revealed that he was taking several psychotropic medications

to treat posttraumatic stress disorder, bipolar disorder, and schizophrenia.

       {¶5}   The trial court held a bifurcated sentencing hearing after both sides

requested to present statements from witnesses and a date could not be reached where

everyone could appear on the same date. The trial court held the first part of the hearing

on June 8, 2018, where the prosecutor presented a statement from a representative for

one of the victims. It was revealed during this statement that one of the stabbing victims

had endured six operations as of the date of the hearing, and expected to undergo at

least three more in the future. The trial court held the second part of the hearing on June

25, 2018, where Appellant made a statement on his own behalf. It was discussed that

Appellant had a criminal record consisting of violent misdemeanors, and the state

recommended an aggregate sentence of nine years of incarceration. Appellant countered

by requesting a four-year sentence.

       {¶6}   The trial court sentenced Appellant to an aggregate total of nine years of

incarceration. The court imposed a mandatory five-year postrelease control term and




Case No. 18 CO 0030
                                                                                           –4–


advised Appellant of his lifetime weapons disability. Appellant was given 560 days of jail-

time credit. It is from this sentencing entry that Appellant timely appeals.

                                          Guilty Plea

       {¶7}   Both of Appellant’s assignments of error contest aspects of the Crim.R. 11

plea hearing. Guilty pleas are governed by Crim.R. 11. Pursuant to Crim.R. 11(C)(2),

the trial judge must enter into a colloquy with a defendant to review the rights that a

defendant gives up as a result of a guilty plea and the consequences of such plea.

       {¶8}   “The underlying purpose, from the defendant's perspective, of Crim.R.

11(C) is to convey to the defendant certain information so that he can make a voluntary

and intelligent decision whether to plead guilty.” State v. Rowbotham, 173 Ohio App.3d

642, 2007-Ohio-6227, 879 N.E.2d 856, ¶ 17 (7th Dist.), citing State v. Ballard, 66 Ohio

St.2d 473, 479-480, 423 N.E.2d 115 (1981).            A defendant who lacks the ability to

understand the nature and object of the proceedings is unable to enter into a plea

knowingly, intelligently, and voluntarily. State v. Doak, 7th Dist. Columbiana Nos. 03 CO

15, 03 CO 31, 2004-Ohio-1548, ¶ 15.

       {¶9}   As part of the colloquy, the trial court is required to advise the defendant of

certain constitutional and nonconstitutional rights. The constitutional rights are outlined

within Crim.R. 11(C)(2), and include the right to: a jury trial, confront witnesses against

him, have a compulsory process for obtaining witnesses in his favor, and require the state

to prove all elements beyond a reasonable doubt at a trial where the defendant cannot

be compelled to testify against himself. The trial court must strictly comply with these

requirements; if it fails to strictly comply, the defendant's plea is invalid. State v. Bell, 7th




Case No. 18 CO 0030
                                                                                         –5–


Dist. Mahoning No. 14 MA 0017, 2016-Ohio-1440, ¶ 9, citing State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31; Ballard, supra, at 477.

       {¶10} The trial court must also advise a defendant of his nonconstitutional rights:

the nature of the charges; the maximum penalty the defendant is subject to, including

postrelease control, if applicable; whether the defendant is eligible for probation or

community control sanctions; and that a trial court may immediately proceed to

sentencing after the plea is accepted. Bell at ¶ 10. Unlike the constitutional rights, a trial

court need only substantially comply with these requirements.              Id.   “Substantial

compliance means that under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving.” Bell at ¶ 10, citing

Veney at ¶ 15. If the trial court does not substantially comply with the advisement of a

defendant’s nonconstitutional rights, the defendant must demonstrate a prejudicial effect

in order to invalidate the plea. Id.

                             ASSIGNMENT OF ERROR NO. 1


       THE TRIAL COURT COMMITTED PLAIN ERROR IN ACCEPTING

       APPELLANT JOHNSON’S GUILTY PLEA WITHOUT CONDUCTING A

       SUFFICIENT       INQUIRY        INTO   WHETHER       HIS    PSYCHOTROPIC

       MEDICATIONS           PREVENTED           HIM      FROM         KNOWINGLY,

       INTELLIGENTLY, AND VOLUNTARILY ENTERING A GUILTY PLEA.


       {¶11} At the plea hearing, Appellant informed the trial court that he was taking the

following medications: Cymbalta, Seroquel, and Mebaral. He stated that the medications

were prescribed to treat posttraumatic stress disorder, bipolar disorder, and




Case No. 18 CO 0030
                                                                                      –6–


schizophrenia. Despite his revelation, he argues that the trial court did not inquire as to

whether these medications affected his ability to enter into an intelligent, knowing, and

voluntary plea. Appellant claims that the trial court only asked him whether he was taking

the medications as prescribed before accepting his plea.

      {¶12} In response, the state notes that there are no specific requirements that a

trial court is bound to when conducting the colloquy. Here, the trial court judge asked

Appellant if he was taking the medications as prescribed and told Appellant multiple times

the court wanted to ensure that Appellant’s medications were not affecting his ability to

understand the proceedings.      Appellant consistently replied that he understood the

proceedings and that he sought to change his plea from not guilty to guilty. The state

contends that several Ohio appellate courts have upheld similar colloquys.


      THE COURT: Are you currently taking any medication?


      [APPELLANT]: Yes, Your Honor.


      THE COURT: What medication are you taking?


      [APPELLANT]: Cymbalta -- post-traumatic stress disorder -- Seroquel and

      Mebaral.


      THE COURT: All right. Are you taking those medications as prescribed?


      [APPELLANT]: Yes, Your Honor.


      THE COURT: Are you taking any other medications, [Appellant], that you’re

      aware of?



Case No. 18 CO 0030
                                                                                  –7–


      [APPELLANT]: No, Your Honor.


      THE COURT: Are you under the care of a physician for any other medical

      issue?


      [APPELLANT]: Yes, Your Honor.


      THE COURT: And can you briefly tell me what the medical issues are?


      [APPELLANT]:      The ones I know of is bi-polar -- I don’t know.

      Schizophrenia, anti- -- my Seroquel is anti-psychotic meds.


      THE COURT: All right.


      [APPELLANT]: And my Cymbalta is depression, and I have no other -- what

      else he has written down what I have so.


      THE COURT: Okay. Do you receive counseling through the Counseling

      Center?


      [APPELLANT]: No, Your Honor.


      THE COURT: All right. Do you receive --


      [APPELLANT]: I do receive counseling. I go to the -- I have been going to

      the Counseling Center for like 16 years.


      THE COURT: Okay. Are you continuing that counseling now?




Case No. 18 CO 0030
                                                                                      –8–


       [APPELLANT]: Yes, Your Honor.


       THE COURT: Okay, thank you. [Appellant], the point of my questions are

       to determine if there is anything that prevents you from understanding what

       we’re doing here today or what we’re talking about here today, including the

       medications that you’re taking.


       [APPELLANT]: No, Your Honor.


       THE COURT: In other words, you understand why we’re here and what

       we’re talking about and what we’re doing here today.


       [APPELLANT]: Yes, Your Honor.


       THE COURT: And what we’re talking about is you’re changing your plea

       and entering pleas of guilty as outlined in the Felony Plea Agreement; do

       you understand that?


       [APPELLANT]: Yes, Your Honor.


(3/5/18 Plea Hearing Tr., pp. 5-7.)

       {¶13} The parties cite to several cases involving a defendant who was under the

influence of a psychotropic drug at the time of the plea hearing. However, there are more

recent cases available that are more closely on point with the instant case.

       {¶14} Generally, “a defendant is presumed to be competent and has the burden

of rebutting that presumption.” State v. Kopras, 7th Dist. Jefferson No. 17 JE 0007, 2018-

Ohio-2774, ¶ 27, citing State v. Filiaggi, 86 Ohio St.3d 230, 236, 714 N.E.2d 867 (1999);



Case No. 18 CO 0030
                                                                                        –9–


R.C. 2945.37(G). “[A] defendant’s plea is not void solely because he may be taking

medication.” Kopras at ¶ 27, citing R.C. 2945.37(F).

       {¶15} In a Sixth District case, the trial court and the defendant discussed the

psychotropic medications that the defendant was taking at the time of the plea hearing.

State v. Parks, 6th Dist. Lucas No. L-18-1138, 2019-Ohio-2366, ¶ 11.             During the

colloquy, the defendant informed the court that he suffered from a variety of mental health

issues, including bipolar disorder, anxiety, severe depression, and ADHD. The defendant

also stated that he was taking several unnamed medications to address these disorders.

The trial court inquired as to whether he was taking the medications as prescribed by his

doctor, and the defendant responded yes. The trial court did not conduct any further

inquiries into the defendant’s mental health.

       {¶16} On appeal, the Sixth District held that the defendant’s history of mental

health issues, alone, was insufficient to render his plea involuntary. Id. at ¶ 13. The Parks

court explained that the defendant actively participated in the plea hearing, acknowledged

the rights he would be giving up by virtue of his plea and the potential sentence that he

faced. The court also noted that there was no evidence that he did not understand the

proceedings or that his mental health issues affected him in any way at the hearing.

       {¶17} In an Eighth District case, the defendant informed the trial court at the plea

hearing that he had voluntarily stopped taking prescribed psychotropic medication. State

v. Haynesworth, 8th Dist. Cuyahoga No. 106671, 2018-Ohio-4519, ¶ 14. On appeal, the

defendant argued that the trial court was required to conduct an additional inquiry into his

mental state after his statement. The Haynesworth court held that the trial court’s inquiry




Case No. 18 CO 0030
                                                                                       – 10 –


was sufficient as it asked the defendant whether his failure to take his medication affected

his ability to understand the proceedings. Id. at ¶ 23.

       {¶18} The instant case is closely aligned with Parks. In both cases, the trial court

asked what mental health problems the defendant suffered from and whether the

defendant was taking the psychotropic medications as prescribed. The trial court went a

step further in the instant case as it inquired whether Appellant was under a doctor’s care,

which he was, and whether he was engaged in counseling, which he had been for the

past sixteen years.

       {¶19} In contrast, the defendant in Haynesworth acknowledged that he was not

taking his medications and the court still found that he was able to intelligently, knowingly,

and voluntarily enter a plea. Here, Appellant stated that he was taking his medications

as prescribed.    Additionally, the trial court informed Appellant that it was trying to

determine whether his mental state and his medication interfered with his ability to

understand the proceedings. Appellant stated that it did not.

       {¶20} Even aside from the trial court’s questioning in this matter, there is nothing

within this record to suggest that Appellant did not understand the proceedings. He

actively participated in the hearing and indicated that he understood the rights that he

was giving up and the possible sentence that he faced. As Appellant has not rebutted

the presumption that he was competent, his first assignment of error is without merit and

is overruled.

                            ASSIGNMENT OF ERROR NO. 2


       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

       FAILED TO ADVISE APPELLANT JOHNSON OF ALL OF THE



Case No. 18 CO 0030
                                                                                     – 11 –


       CONSTITUTIONAL RIGHTS, HE WAS WAIVING BY ENTERING A PLEA

       OF GUILTY.


       {¶21} Appellant argues that a trial court is required to inform a defendant who is

facing a weapons disability that a guilty plea “waives” his Second Amendment right to

bear arms. Appellant contends that the trial court did not advise him that by making his

guilty plea he would relinquish his right to bear arms.

       {¶22} The state points out that there is no statute or caselaw that requires a trial

court to advise a defendant that a guilty plea will affect his Second Amendment rights.

Regardless, the state argues that the trial court informed Appellant at the plea hearing

that he would be placed under a weapons disability as a result of his plea under state and

federal law. Appellant responded that he understood.

       {¶23} Although the notification of a weapons disability is not specifically listed as

either a constitutional or nonconstitutional right within Crim.R. 11(C), it is part of the

possible punishment that a defendant faces. Thus, the advisement appears to fall within

the notification of a defendant’s nonconstitutional rights.      A trial court need only

substantially comply with a nonconstitutional right notification. There is no statute or

caselaw that specifies precisely how a court must advise a defendant regarding a

weapons disability. We note that Appellant does not object to any other aspect of his

Crim.R. 11 advisements.

       {¶24} Here, the following conversation occurred between the trial court and

Appellant at the plea hearing:




Case No. 18 CO 0030
                                                                                      – 12 –


       THE COURT: If you are convicted of a felony offense, you would be placed

       under a weapons disability under Ohio and Federal law; do you understand

       that?


       [APPELLANT]: Yes, Your Honor.


(3/5/18 Plea Hearing Tr., p. 14.)

       {¶25} Appellant does not specify the alleged deficiency in this advisement. We

can glean from his brief that he believes that a trial court must specifically explain that a

weapons disability is a waiver of his Second Amendment rights. Without any precedent

suggesting that a trial court must specifically advise a defendant that a weapons disability

affects his Second Amendment rights, we are guided by the definition of substantial

compliance.    Again, substantial compliance “means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and

the rights he is waiving.” Bell at ¶ 10, citing Veney at ¶ 15.

       {¶26} At the plea hearing, Appellant stated that he understood he would be

subject to a lifetime weapons disability pursuant to state and federal law. There is nothing

within this record to suggest that he did not understand this advisement. Importantly, at

no point, including during this appeal, does Appellant claim that he did not understand the

weapons disability. Thus, even if he could show that the trial court did not substantially

comply with the advisement, he cannot demonstrate prejudice.

       {¶27} As there is no statutory law or caselaw stating that a trial court must advise

a defendant of a weapons disability with specificity, and Appellant has not shown

prejudice, his second assignment of error is without merit and is overruled.




Case No. 18 CO 0030
                                                                                        – 13 –


                                         Conclusion

       {¶28} Appellant argues that the trial court failed to sufficiently inquire as to whether

several medications affected his ability to enter an intelligent, knowing, and voluntary

guilty plea. Appellant also argues that the court failed to adequately advise him that he

would receive a lifetime weapons disability.        For the reasons provided, Appellant’s

arguments are without merit and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

D’Apolito, J., concurs.




Case No. 18 CO 0030
[Cite as State v. Johnson, 2019-Ohio-4541.]




         For the reasons stated in the Opinion rendered herein, the assignments of error

 are overruled and it is the final judgment and order of this Court that the judgment of

 the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
