[Cite as State v. Hartshorn, 2018-Ohio-1347.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-

ZACHARY M. HARTSHORN                               Case No. 17-CA-80

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Licking County Municipal
                                                Court, Case No. 17CRB02132


JUDGMENT:                                       Affirmed

DATE OF JUDGMENT ENTRY:                         April 5, 2018

APPEARANCES:

For Defendant-Appellant                         For Plaintiff-Appellee

CHRIS BRIGDON                                   J. MICHAEL KING
123 Stirling Way                                Assistant Law Director
Etna, Ohio 43062                                City of Newark
                                                40 West Main Street
                                                Newark, Ohio 43055
Licking County, Case No. 17-CA-80                                                          2

Hoffman, J.

       {¶1}   Appellant Zachary M. Hartshorn appeals a judgment of the Licking County

Municipal Court convicting him of assault (R.C. 2903.13) and sentencing him to 180 days

incarceration. Appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On October 4, 2017, Appellant and his girlfriend, who was 16 years old,

argued at his residence. Appellant began hitting a pole with a sword, striking his girlfriend

in the elbow with the sword. As the argument continued, he choked her and punched

her. She ran outside. Police were dispatched to the scene, where they interviewed the

victim as she was treated by emergency medical personnel.

       {¶3}   A witness told police he saw Appellant kick the victim in the face six times

while she was on the ground, and he saw Appellant punch her once. The witness told

Appellant to get off of her, and Appellant walked past him into the home.

       {¶4}   Appellant told police he has anxiety issues and has been taking medication,

which seems to help him. He told police he and the victim were arguing, and he started

having a panic attack. Appellant stated the victim kicked him in the stomach and he

blacked out. When the detective conducting the interview told Appellant he did not believe

Appellant had blacked out and showed Appellant a picture of the victim’s injuries, he told

police he grabbed a sword when he got upset and started hitting a pole. He admitted

accidentally striking the victim in the elbow with the sword. He admitted pushing her

down, and said after he pushed her down she kicked him in the stomach and the face.

He admitted he punched the victim a few times while she was on the ground.
Licking County, Case No. 17-CA-80                                                          3


       {¶5}   Appellant was charged with assault as a first degree misdemeanor. He was

arraigned on October 5, 2017, and entered a plea of guilty. The court sentenced him to

180 days incarceration. From the October 5, 2017 judgment of conviction and sentence

Appellant prosecutes this appeal, assigning as error:



              APPELLANT’S CONVICTION OF ASSAULT WAS IN ERROR DUE TO

       THE TEMPORARY INCAPACITY OF THE APPELLANT DURING THE

       ARRAIGNMENT PROCEEDINGS.



       {¶6}   Appellant argues he was legally incompetent to make an informed decision

to plead guilty due to a mixture of sleep deprivation, the traumatic experience of the

incident, and being under the influence of a drug not prescribed to him. He does not

dispute the fact the trial court informed him of his rights during arraignment, but claims he

does not remember the proceeding and his incapacity went unnoticed.

       {¶7}   The following colloquy occurred during Appellant’s arraignment:




              THE COURT: Are you Zachary Hartshorn?

              MR. HARTSHORN: Yes.

              THE COURT: Mr. Hartshorn you are charged with a first degree

       misdemeanor offense known as assault. The Newark Police Department

       alleges that yesterday here in Newark you did knowingly cause or attempt

       to cause physical harm to another person. Do you understand the charge
Licking County, Case No. 17-CA-80                                                        4


      sir it is punishable by up to six months in jail and up to a one thousand dollar

      fine?

              MR. HARTSHORN: Yes.

              THE COURT: How do you wish to plead do you want to plead guilty

      or not guilty?

              MR. HARTSHORN: Guilty.

              THE COURT: Did you say guilty?

              MR. HARTSHORN:         Yes.

              THE COURT: Do you have a statement you wish to make sir?

              MR. HARTSHORN:         That I blacked out during all of that.

              THE COURT: Okay let me read what the police officer had to say.

      Alright Mr. Hartshorn the court will enter a fine in your case of $250.00 and

      sentence you to one hundred and eighty days in jail. You can go with the

      deputy sheriff.

      Tr. 2-3.1




      {¶8}    R.C. 2945.37(B) provides:




              (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




1 WhileAppellant alleges in his brief the arraignment was conducted via video conference,
a video of the arraignment was not made a part of the record on appeal.
Licking County, Case No. 17-CA-80                                                        5


      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.




      {¶9}   A defendant is presumed to be competent to stand trial. R.C. 2945.37. “The

right to a hearing on the issue of competency rises to the level of a constitutional

guarantee where the record contains ‘sufficient indicia of incompetence,’ such that an

inquiry into the defendant's competency is necessary to ensure the defendant's right to a

fair trial. State v. Berry, 72 Ohio St.3d 354, 1995-Ohio-310, 650 N.E.2d 433 (1995). The

test to determine whether a defendant is competent to stand trial is whether he has

sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding, and whether he has a rational as well as factual understanding of the

proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4

L.Ed.2d 824, 825(1960).

      {¶10} Appellant claims he was incompetent at the time of the hearing because of

sleep deprivation, shock from the traumatic event, and being under the influence of the

drug Effexor which was not prescribed for him.           However, these claims are not

demonstrated by the record. While Appellant told the court he blacked out during the

incident, the arraignment was conducted the day after the incident, at which time

Appellant was able to converse with the judge. The record before this Court does not

contain indicia of incompetence.
Licking County, Case No. 17-CA-80                                             6


      {¶11} The assignment of error is overruled.

      {¶12} The judgment of the Licking County Municipal Court is affirmed.




By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur
