[Cite as State v. Wisler, 2019-Ohio-2363.]




                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :    APPEAL NO. C-180326
                                                  TRIAL NO. C-18CRB-12913
        Plaintiff-Appellee,                  :

  vs.                                        :      O P I N I O N.

TINA WISLER,                                 :

      Defendant-Appellant.                   :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 14, 2019


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Jon R. Sinclair, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

   {¶1}       There is no question that a knowing, voluntary, and intelligent plea

assumes a baseline level of competence from a defendant.           This case involves

primarily the parameters of a trial court’s discretion to evaluate that competence.

For the reasons that follow, we hold that the defendant in this case was competent to

enter her valid, no-contest plea, and we affirm the trial court’s judgment.

   {¶2}       Based on her religious convictions, appellant Tina Wisler does not

believe that married couples should divorce, and this is apparently a strongly

imbedded tenet of her faith.        Her ex-husband, apparently feeling otherwise,

eventually obtained a divorce that Ms. Wisler has proven unable to accept.

Understandably, this has precipitated a number of problems, and her ex-husband

ultimately obtained a protective order obligating her to stay away from him.

Nevertheless, Ms. Wisler has a penchant for violating that requirement, and the case

before us arose when she wandered onto the front lawn of her ex-husband’s home in

violation of the prior protection order.

   {¶3}       Facing an indictment for a misdemeanor violation of R.C. 2919.27, a

day prior to the trial on this charge, her counsel filed a motion for a competency

evaluation. The next day, the trial court denied this motion and accepted a plea of no

contest from Ms. Wisler. She received a sentence of 180 days in the jail with credit

for 20 days served. Ms. Wisler now appeals, challenging the propriety of her plea and

her competency to enter into it.

   {¶4}       Ms. Wisler’s first assignment of error concerns whether her no-contest

plea satisfied all of the procedural and substantive requirements for a plea. R.C.

2937.07 governs “no contest” pleas in misdemeanor cases: “A plea to a misdemeanor

offense of ‘no contest’ or words of similar import shall constitute an admission of the

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truth of the facts alleged in the complaint and that the judge or magistrate may make

a finding of guilty or not guilty from the explanation of circumstances of the offense.”

No specific incantation is required; rather, there must be some recitation of facts

that, if true, would support all the essential elements of a crime to reach a guilty

verdict. State v. Jenkins, 3d Dist. Hancock Nos. 5-15-21, 5-15-22 and 5-15-23, 2016-

Ohio-1428, ¶ 6.      “[A] court may make its finding from the explanation of

circumstances by the state.” State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d

821 (1995).

   {¶5}        The Supreme Court of Ohio recently shed some light on this statute:

“the explanation-of-circumstances requirement is best understood as providing a

level of procedural protection to the defendant.” City of Girard v. Giordano, 155

Ohio St.3d 470, 2018-Ohio-5024, 122 N.E.3d 151, ¶ 20.            It is not, however, a

barometer of the sufficiency of the evidence. Id. at ¶ 16 (holding that “reversal for

failure to comply with the explanation-of-circumstances requirement” is not the

equivalent of “acquittal based on insufficiency of the evidence”).

   {¶6}        At issue here is a violation of R.C. 2919.27(A)(2): “(A) No person shall

recklessly violate the terms of any of the following: * * * (2) A protection order issued

pursuant to section 2151.34, 2903.213, or 2903.214 of the Revised Code[.]” Ms.

Wisler insists, first, that she did not actually admit or concede the facts read into the

record pursuant to that charge. Second, she faults the absence of the protection

order from the record, and therefore, reasons that the explanation-of-circumstances

could not suffice to support a finding of guilt.

   {¶7}        As to her first argument, Ms. Wisler admitted at the hearing that she

knew there was a protection order and that she was not supposed to be at her ex-

husband’s home. She did not dispute her presence at his house in contravention of

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the order. Rather, on appeal, she seizes on a statement where she responded “[a]nd

that’s not true” as evidence that she contested the predicate facts. But that rests on a

myopic reading of her answer, and one divorced from context.           She made that

statement in response to the following part of the state’s description of the incident:

“She stated [to the responding officer] that she was trying to talk to her husband and

that God or the courts could not keep her from her husband.”            In context (as

reinforced by subsequent back-and-forth with the court), her statement related to

this extraneous point about her conversation with the responding officer and not to

the factual basis for the misdemeanor offense.       Even Ms. Wisler’s trial counsel

acknowledged as much on the record. Therefore, this statement cannot unravel the

plea.

   {¶8}       In her second argument, Ms. Wisler effectively asks the court to

impose an evidentiary requirement in a no-contest-plea scenario. But this would go

beyond what is contemplated by R.C. 2937.07, as explained by the Giordano

decision. The essential elements of R.C. 2919.27(A)(2) are that an accused recklessly

violated a valid protection order. The state recited when the incident occurred, the

existence of a valid protection order, and that police officers found Ms. Wisler sitting

on her ex-husband’s lawn. This satisfies the threshold of procedural protection

required by R.C. 2937.07, and the state did not need to produce the protection order

in the absence of any dispute as to its existence or terms. Neither issue raised by Ms.

Wisler has merit, and we overrule her first assignment of error.

   {¶9}       Ms. Wisler’s second and third assignments of error concern her mental

state vis-à-vis her plea. She styles her second assignment of error as related to a

“competency hearing,” but the motion itself and the discussion of the motion in the

transcript reflect a motion for a “competency evaluation.”         These concepts are

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distinct and addressed by different Revised Code sections. R.C. 2945.37(B) deals

with competency hearings and provides that, if raised before trial, “the court shall

hold a hearing.”    The code section dealing with competency evaluations, R.C.

2945.371, states, by contrast: “If the issue of a defendant’s competence to stand trial

is raised * * * the court may order one or more evaluations of the defendant’s mental

condition * * *.” (Emphasis added.) In short, this provision grants a measure of

discretion to the trial court. See State v. Bailey, 90 Ohio App.3d 58, 67, 627 N.E.2d

1078 (11th Dist.1992) (“[T]he use of the word ‘may’ supports the conclusion that a

trial court is not required to order an evaluation * * * every time [the defendant]

raises the issue. Instead, the wording of the statute implies that the order of an

examination is a matter within the discretion of the trial court.”); State v. Stahl, 2d

Dist. Greene No. 2004-CA-69, 2005-Ohio-2239, ¶ 19 (same); State v. Nisley, 3d Dist.

Hancock No. 5-13-25, 2014-Ohio-1137, ¶ 28 (same).

   {¶10}      In most instances, a competency evaluation would flow, if at all, from

an initial determination after a hearing that a defendant might be incompetent. A

defendant is presumed competent and carries the burden (by a preponderance of the

evidence) to show otherwise. R.C. 2945.37(G); Nisley at ¶ 28 (“[I]t is the defendant’s

burden to prove * * * that he is incompetent to stand trial.”). A competency hearing

need not display a particular level of formality or rigidity of procedure. See, e.g.,

Bailey at 66 (trial court “interviewed appellant, and then decided that an

examination was not needed.”); State v. Dye, 5th Dist. Licking No. 99-CA-2, 1999

WL 770619, *3 (Sept. 2, 1999) (interview with defendant sufficient for competency

determination). The standard of appellate review on competency determinations is

“whether the trial court’s conclusion was supported by competent, credible



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evidence.”     State v. Stanley, 121 Ohio App.3d 673, 686, 700 N.E.2d 881 (1st

Dist.1997), citing State v. Williams, 23 Ohio St.3d 16, 19, 490 N.E.2d 906 (1986).

   {¶11}        Legal incompetence comprises the capabilities of “understanding the

nature and objective of the proceedings” and of “assisting in the defendant’s

defense.” R.C. 2945.37(G). “[T]he term ‘mental illness’ does not necessarily equate

with the definition of legal incompetency.” State v. Berry, 72 Ohio St.3d 354, 362,

650 N.E.2d 433 (1995). “Incompetency 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 Ohio St.3d 108, 110, 502 N.E.2d

1016 (1986).

   {¶12}        Turning to the record at hand, the transcript is filled with Ms. Wisler’s

lengthy, proffered explanations as to why her prior actions represent her attempts to

act consistently with her religious beliefs. Ms. Wisler did not, however, proffer

sufficient evidence of legal incompetence to warrant an evaluation. The trial court

engaged extensively with Ms. Wisler about her religious beliefs and why her

corresponding actions were inconsistent with the law. However unorthodox her

beliefs, she was cogent enough to warrant a considerable amount of the trial court’s

time in discussing these topics. The trial court walked away with the impression that

she did not labor under any competency problem and that her actions were

obstinately taken in response to her religious conviction—notwithstanding the

consequences.     In fact, just after the trial court denied the motion for a competency

evaluation on the record, Ms. Wisler’s trial counsel remarked: “I think that she

understands that she violated Ohio law.”



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                      OHIO FIRST DISTRICT COURT OF APPEALS


   {¶13}      In addition, isolated remarks to the effect that she did not understand

the plea or the proceedings are contrasted with the distinct impression, following an

overall reading of the transcript, that she understood that she violated secular laws

and the consequences thereof. Perceived inconsistencies between her faith and Ohio

law is not equivalent to a subjective failure to understand her plea and related

matters for purposes of the legal-competence analysis. The second assignment of

error is overruled.

   {¶14}      For the same reason, these isolated remarks do not support holding

that her no-contest plea was not knowing, voluntary, and intelligent for purposes of

Crim.R. 11(E) and her third assignment of error. Ms. Wisler also charges that the

trial court only offered an explanation of her plea after finding her guilty. Again, a

comprehensive reading of the transcript assuages this concern. The trial court did

not make a final determination until Ms. Wisler acknowledged that she understood

the plea. The third assignment of error is overruled.

   {¶15}      For the reasons discussed above, all three assignments of error are

overruled, and we affirm the trial court’s judgment.

                                                                 Judgment affirmed.

MOCK, P.J., and WINKLER, J., concur.

Please note:
       The court has recorded its own entry this date.




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