[Cite as State v. Jirousek, 2013-Ohio-4796.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99641



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                               MICHAEL D. JIROUSEK
                                               DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-559093

        BEFORE: McCormack, J., E.A. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: October 31, 2013
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Callista R. Plemel
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

        {¶1} Michael Jirousek appeals from his conviction of attempted assault on a

peace officer.   He claims he was denied due process of law because the trial court failed

to determine his competency after it referred him for a competency evaluation.         Finding

merit to the claim, we reverse the trial court’s judgment and remand the matter for further

proceedings consistent with this opinion.

                       Substantive Facts and Procedural History

        {¶2} On January 27, 2012, Jirousek, 27, a college graduate, got into an argument

with his parents when his parents refused to allow him to drive the family car to go on a

date.   His parents called the police.   When confronted by three police officers who

responded to the call, Jirousek swung and hit one of the officers, and was arrested.

        {¶3} Jirousek made an initial appearance in court on January 31, 2012, and bail

was set.   A week later, he was referred to the court’s psychiatric clinic for an evaluation

to determine if he was competent to stand trial.   The court’s journal entry dated February

7, 2012 stated the following:

        * * * Defendant is referred to court psychiatric clinic.
        Director, Psychiatric Clinic:
        In accordance with provisions of the Ohio Revised Code,
        2945.371[“Evaluations of defendant’s mental condition at relevant time;
        separate mental retardation evaluation competence to stand trial”]; etc.
        2947.06(B)[“Testimony in mitigation of sentence; presentence investigation
        report; psychological reports”] report for the purpose of determining the
       disposition of a case: eligibility for mental health/ developmental disability
       due to a psychotic disorder (formerly MDO).
       You are directed to examine Michael D Jirousek.

However, despite the referral, the docket does not reflect any further reference to the

issues of Jirousek’s competency.

       {¶4} Also on February 7, 2012, the case was referred to the grand jury for

indictment.   On February 21, 2012, Jirousek was indicted for assault on a peace officer,

a fourth-degree felony and resisting arrest, a second-degree misdemeanor.     On March 6,

2012, he was arraigned.

       {¶5} Over the course of the next few months, eight pretrials were held.          Then,

on July 25, 2012, the trial court issued a capias for him because he was incarcerated and

awaiting the disposition of an unrelated case in Geauga County (to which he later pleaded

guilty, receiving a two-and-a-half year prison term).

       {¶6}    Subsequently, on February 7, 2013, Jirousek pleaded guilty in the instant

case to attempted assault on a peace officer, a felony of the fifth degree.   He waived a

PSI, and the court proceeded to sentence him to a seven-month prison term, allowing him,

however, to serve the term concurrently with his prison term in Geauga County.           The

only inkling that the defendant’s mental health may be an issue from the record before us

is defense counsel’s statement to the court before sentencing that “[Jirousek’s] very sorry

for what he did. He’s going to focus on getting an anger management program in and

also any mental health programs that they may have at the facility * * *.”
      {¶7} Jirousek now appeals, raising five assignments of error for our review.

Under the first assignment of error, he claims he was denied due process of law because

there was no judicial determination of his competence after being referred for a

competency evaluation.

      {¶8} A person who “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 stand trial. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d

215, ¶ 155, citing Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103

(1975). “Fundamental principles of due process require that a criminal defendant who is

legally incompetent shall not be subjected to trial.” Id., citing State v. Berry, 72 Ohio

St.3d 354, 359, 1995-Ohio-310, 650 N.E.2d 433.

      {¶9} R.C. 2945.37 addresses the competency issue. It states, in pertinent part:

              (B) In a criminal action in a court of common pleas, a county court,
      or a municipal court, the court, prosecutor, or defense may raise the issue of
      the defendant’s competence to stand trial. If the issue is raised before the
      trial has commenced, the court shall hold a hearing on the issue as provided
      in this section. If the issue is raised after the trial has commenced, the court
      shall hold a hearing on the issue only for good cause shown or on the
      court’s own motion.

             (C) The court shall conduct the hearing required or authorized under
      division (B) of this section within thirty days after the issue is raised, unless
      the defendant has been referred for evaluation in which case the court shall
      conduct the hearing within ten days after the filing of the report of the
      evaluation * * *.

(Emphasis added.)
       {¶10}   This court has consistently held that, pursuant to R.C. 2945.37(B), a trial

court must hold a hearing on the issue of a defendant’s competency if the issue is raised

prior to trial. In State v. Dowdy, 8th Dist. Cuyahoga No. 96642, 2012-Ohio-2382, the

record reflected that the trial court ordered appellant (to Northcoast Behavioral

Healthcare) for a competency evaluation.        We reversed appellant’s conviction and

remanded for the trial court to vacate his guilty plea because, despite the trial court’s

explicit order for a psychiatric evaluation, no competency hearing was held, neither did

the record reflect any finding of competency, a filing of the psychiatric report, or

stipulation by the parties regarding defendant’s competency. Dowdy at ¶ 15.

       {¶11}   We distinguished State v. Bock, 28 Ohio St.3d 108, 502 N.E.2d 1016

(1986), where the court held the lack of a hearing was harmless error, because defendant

participated in trial and offered his own testimony and the record failed to reveal

sufficient indicia of incompetency.      We explained that because the results of the

evaluation ordered by the court were not made part of the record, nor stipulated to by the

parties, we were unable to glean sufficient information from the record to conclude the

trial court’s failure to conduct the hearing was harmless. Id. at ¶ 16, citing State v. Cruz,

8th Dist. Cuyahoga No. 93403, 2010-Ohio-3717, ¶ 11-16.         See also State v. Morris, 8th

Dist. Cuyahoga No. 98591, 2013-Ohio-1033, ¶ 10.          As the court in State v. Were, 94

Ohio St.3d 173, 177 2002-Ohio-481, 761 N.E.2d 591, remarked, “common sense dictates

that no defendant can make a record of lack of competency absent the findings and
hearings contemplated by R.C. 2945.37 and 2945.371,” citing Bock at 113 (Wright, J.,

dissenting).

       {¶12} Similarly here, the issue of the defendant’s competency was raised, as

reflected by the trial court’s February 7, 2012 judgment entry. However, the trial court

did not hold a hearing on this issue, or otherwise make a formal finding of competency on

the record; neither does the record reflect that a psychiatric evaluation report was filed or

that the parties stipulated to the defendant’s competency.1 The docket is simply devoid

of any further reference to the competency issue subsequent to the court’s referral for

psychiatric evaluation. As in Dowdy, we are unable to glean sufficient information from

this record to conclude the court’s failure to conduct the statutorily required hearing is

harmless.      Without first conducting a hearing and determining Jirousek’s competency,

the trial court could not ensure that his guilty plea was indeed knowing, intelligent, and

voluntary. Morris at ¶ 11.

       {¶13} The first assignment of error is sustained.                Appellant’s conviction is

reversed, and this matter is remanded to the trial court to vacate the guilty plea and

conduct a hearing on appellant’s competency pursuant to R.C. 2945.37.                 The remaining

assignments of error are moot.

       {¶14} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.


          After appellant and appellee filed the respective briefs, this court, sua sponte, ordered the
       1


psychiatric evaluation report to be filed with this court. The report was subsequently filed by the
clerk. However, there is no indication whether the report was ever considered by the trial court.
       It is ordered that appellant recover of said appellee 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.

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

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, J., CONCURS;
EILEEN A. GALLAGHER, P.J., CONCURS (WITH SEPARATE CONCURRING
OPINION ATTACHED)

EILEEN A. GALLAGHER, P.J., CONCURRING:

       {¶15} The system failed this appellant.

       {¶16} The rush to resolution, which seems to be the underlying principle of the

Early Case Management (“ECM”) program, has contributed to the failure.

       {¶17} The appellant’s initial appearance on January 31, 2012, was via video

conferencing. Bond was set, a trial judge assigned and the ECM standing order was

journalized, including an order that parties and counsel be present on February 7, 2012,

for an ECM hearing.

       {¶18} The record does not reflect that the appellant or counsel was actually present

on February 7, 2012.    The journal entry of that date merely reflects “No early resolution.

 Case referred to prosecutor for further action * * *.”      Appellant was referred at that
time to the Court Psychiatric Clinic for an evaluation to determine, among other things,

competency to stand trial.

       {¶19} There is no indication as to why appellant was so referred or who requested

the referral.

       {¶20} A report was prepared by psychologist Bethany A. Young-Lundquist and

dated March 5, 2012. Said report was addressed to the trial court at Courts Tower 22D

Justice Center.

       {¶21} Dr. Young-Lundquist in that report that was made part of the record by

order of this court opined, with a reasonable degree of psychological certainty, that

appellant was competent to stand trial.       She also made clear that the appellant, based

upon       a   referenced   diagnosis   was   eligible    “for   supervision   in   the   Mental

Health/Developmental Disability Program.”2

       {¶22} Someone raised the proverbial red flag in this case that suggested that

appellant has, or may have, mental health issues.        However, after that flag was raised, no

one took a second look.

       {¶23} Had anyone paid attention, the appellant could have been referred for an

independent evaluation, which may have reached a different conclusion.

       {¶24} This case should serve as a notice to all: the courts, the prosecutors and

defense counsel that haste sometimes does, in fact, make waste.


        In order to maintain the appellant’s privacy, specific records and findings of the Court
       2


Psychiatric Clinic will not be identified.
