[Cite as State v. Bennett, 2019-Ohio-2213.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 107078
                 v.                                 :

TAMESHA BENNETT,                                    :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: June 6, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-621144-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecutor, and
                 Anna Woods, Assistant County Prosecutor, for appellee.

                 Joseph V. Pagano, for appellant.



ANITA LASTER MAYS, J.:

                   Appellant Tamesha Bennett (“Bennett”) appeals her jury trial

conviction for one count of felonious assault under R.C. 2903.13(A), a fourth-degree

felony. We reverse and remand.
I.    Background and Facts

               Bennett has a considerable mental health history and has been

admitted to several treatment facilities over the years. On September 5, 2017,

accompanied by her caseworker, Bennett voluntarily admitted herself to

MetroHealth Medical Center due to mental health concerns. Bennett was seeking

an adjustment of her medications. After waiting several hours to receive medical

attention, Bennett began yelling and screaming that she wanted to leave. Police

officers, including Officer Philip Onysyk (“Officer Onysyk”), were called to assist and

remained present at the staff’s request.

               Bennett began yelling again when the staff tried to relocate Bennett

to another room. Bennett threw a plastic meal tray at a nurse and began flailing her

arms near staff members. Officers moved to restrain Bennett by holding her down

on the bed, and Bennett protested, yelling that “you’re raping me.” Bennett bit

Officer Onysyk on the leg, causing a large bruise.

               Bennett was indicted for assaulting a peace officer, a fourth-degree

felony, under R.C. 2903.13(A). In November 2017, the trial court ordered that the

psychiatric clinic conduct competency and sanity at the time of the act evaluations

of Bennett. At the appointment, Bennett requested to confer with an attorney before

she completed a sanity evaluation. The psychiatric doctor submitted a letter to the

court regarding Bennett’s request.

               Before trial began on February 7, 2018, the trial court inquired of

defense counsel whether Bennett was on the mental health docket and whether
there were any issues about competency. Defense counsel responded that there

were none that he was aware of and expressed his belief that Bennett had been

evaluated. Bennett informed the trial court that she believed the psychiatric clinic

wanted her to return for another appointment, but she never received a letter. The

trial court acknowledged the presence of a 2013 competency report in the file from

a previous case finding that Bennett was competent to stand trial in that matter. The

trial court inquired about Bennett’s competency issues on the day of trial and, being

satisfied, began trial. Bennett was tried before a jury and convicted the same date.

Bennett appeals the conviction.

II.   Assignments of Error

              Bennett proffers four assignments of error:

      I.     The trial court erred when it ordered an evaluation for
             competency to stand trial and sanity at the time of the act, and
             then did not hold a hearing on the issue of sanity and the hearing
             on competency was insufficient to determine appellant’s
             competence.

      II.    Appellant’s Sixth and Fourteenth Amendment rights under the
             United States Constitution were violated based upon ineffective
             assistance of counsel.

      III.   The trial court erred when it denied appellant’s motion for
             acquittal under Crim.R. 29 because the state failed to present
             sufficient evidence to establish beyond a reasonable doubt the
             elements necessary to support the conviction.

      IV.    Appellant’s conviction is against the manifest weight of the
             evidence.
III.   Discussion

                We address the second assigned error charging ineffective assistance

of counsel as it is dispositive of this case. This court finds that Bennett was deprived

of a fair trial by the ineffective assistance of counsel regarding the issue of Bennett’s

competency.

                In an appellate review,

       Reversal of a conviction for ineffective assistance of counsel requires a
       defendant to show that (1) counsel’s performance was deficient, and (2)
       the deficient performance prejudiced the defense. State v. Smith, 89
       Ohio St.3d 323, 327, 731 N.E.2d 645 (2000), citing Strickland v.
       Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
       Defense counsel’s performance must fall below an objective standard
       of reasonableness to be deficient in terms of ineffective assistance of
       counsel. See State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373
       (1989). Moreover, the defendant must show that there exists a
       reasonable probability that, were it not for counsel's errors, the results
       of the proceeding would have been different. State v. White, 82 Ohio
       St.3d 16, 23, 693 N.E.2d 772 (1998).

State v. Jones, 8th Dist. Cuyahoga No. 102260, 2016-Ohio-688, ¶ 14.

                In addition,

       [t]o establish ineffective assistance of counsel, a defendant must show
       (1) deficient performance by counsel, i.e., performance falling below an
       objective standard of reasonable representation, and (2) prejudice, i.e.,
       a reasonable probability that but for counsel’s errors, the proceeding’s
       result would have been different. Strickland at 687-688, 694; Bradley
       at paragraphs two and three of the syllabus.

       Id. at ¶ 15.

                Also,

       [i]n evaluating a claim of ineffective assistance of counsel, a court must
       give great deference to counsel’s performance. Strickland at 689. “A
       reviewing court will strongly presume that counsel rendered adequate
       assistance and made all significant decisions in the exercise of
       reasonable professional judgment.” State v. Pawlak, 8th Dist.
       Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.

Id. at ¶ 16.

                R.C. 2945.37 addresses hearings on competence to stand trial:

       (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 or, in the case of a
               defendant who is ordered by the court pursuant to division (H)
               of section 2945.371 of the Revised Code to undergo a separate
               intellectual disability evaluation conducted by a psychologist
               designated by the director of developmental disabilities, within
               ten days after the filing of the report of the separate intellectual
               disability evaluation under that division. A hearing may be
               continued for good cause.

R.C. 2945.37.

                Bennett has a long history of mental health issues. The court and

defense counsel were aware of Bennett’s history. The record reveals on the morning

of the trial, Bennett refused to plead guilty to the proposed fifth-degree felony.

Defense counsel informed the trial court of Bennett’s belief that “[s]he was provoked

to do it by others and maintains her innocence.” (Tr. 7.)
               Bennett also advised the trial court at that time that her counsel failed

to subpoena a witness that she requested to have testify on her behalf.

       Bennett:     I think I wrote you a letter — did you get it — about a new
                    lawyer because in the beginning of this I have been asking
                    [counsel] to get the — my witness of the doctor of why the
                    doctor released me if I was so worked up. They were
                    supposed to give me a shot that day. They didn’t give me a
                    shot. The doctor released me when everything went down
                    because I told them what had happened. So I want to
                    know if I was so worked up and so — and fighting the staff,
                    why did the doctor release me?
(Tr. 8.)

               The court advised Bennett that the information did not appear to have

anything to do with her case and indicated that counsel may have determined that

the information was not relevant. “[T]his is not complicated. Either you did this or

you did not do this.” (Tr. 8.)

               Bennett responded that counsel first told her to call the doctor herself.

“[T]hen he just told me today I should have told my caseworker to do it.” Bennett

indicated that the doctor witnessed the event. The state said it did “not believe there

was a doctor present in the room while [the incident] was going on.” (Tr. 8-9.)

               Defense counsel advised that he asked Bennett to provide him with

“the name, address and phone numbers of any witnesses she wanted subpoenaed.

That was never done. I have no — if there was a doctor, I don’t even know what his

name is.” (Tr. 10.) The trial court then informed Bennett that she was free to take

the witness stand and explain what happened and let the jury decide.
         The trial court next inquired:

Court:       Let me – before the jury comes out here, is Ms. Bennett on the
             mental health court docket?

Counsel:     Yes, Your Honor.

Court:       There’s no issue about competency, right?

Counsel:     None that I’m aware of, Your Honor. I believe she was evaluated.

Court:       She’s been able to assist you in her preparation for the defense?

Counsel:     Yes, to the degree she’s made an effort.

Court:       Okay. And you’re thinking clearly today, right?

Bennett:     Yes; but when I went to the court mental health here, they said
             that they were — before they actually took in consideration of
             what I was saying that they wanted me to come back.

Court:       Okay.

Bennett:     So I have never got a letter to come back.

Court:       Well, I know that there's a previous report here, a competency
             report. This is — you were — this was for a previous case, 2013.
             You were found competent.

Bennett:     Yeah.

Court:       Are you on any type of medication today?

Bennett:     I take Geodon and Neurontin.

Court:       For your schizoaffective disorder.

Bennett:     Uh-huh.

Court:       And are you thinking clearly?

Bennett:     Yes.
       Court:        And you have an understanding of what the allegations are and
                     the proceedings and the roles of the various parties in this case?

       Bennett:      Yes.

       Court:        And you are prepared to go forward.

       Bennett:      Yes.

       Court:        Okay, great. Let’s bring the jury out.

(Tr. 11-13.)

                 The trial proceeded to conclusion. Bennett testified in her defense.

At no point during the trial, verdict, or sentencing was a competency or sanity at the

time of the act report mentioned, other than the 2013 competency report briefly

referenced prior to the trial. After the verdict, the trial court requested a presentence

investigation report. Bennett was placed on supervised release with a mental health

probation officer.

                 At the sentencing, the trial court informed Bennett that her conviction

could result in an 18-month prison sentence; however,

       because you are mental health eligible, what I’ll try to do is work with
       you and your issues and provide you with a support system that will
       help you be successful on probation.

       It’s going to entail, you will be transferred to the mental health docket.
       You will get a special probation officer, that he would work with
       Signature [Health mental health clinic] and your caseworker there to
       make sure you are medication compliant.

       But what I need on your end is a commitment not to drink alcohol, not
       to use any drugs because it mixes with the medication and creates
       problems.

(Tr. 232-233.)
              A review of the record in this case demonstrates that a R.C. 2945.371

evaluation for competence and sanity at the time of the act was requested by

defendant and ordered by the trial court on November 16, 2017. R.C. 2945.37(C)

says that the “court shall conduct the hearing within ten days after the filing of the

report of the evaluation.”

              If a request is made prior to trial, the trial court must conduct a

hearing.

      The Ohio Supreme Court has stated that “there is no question that
      where the issue of the defendant’s competency to stand trial is raised
      prior to trial, a competency hearing is mandatory.” State v. Bock, 28
      Ohio St.3d 108, 109, 502 N.E.2d 1016 (1986); State v. Ahmed, 103 Ohio
      St. 3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 64 (“R.C. 2945.37
      requires a competency hearing if a request is made before trial.”)
      Likewise, 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. [State v.]
      Jirousek, 8th Dist. Cuyahoga No. 99641, 2013-Ohio-4796, ¶ 10; State
      v. Dowdy, 8th Dist. Cuyahoga No. 96642, 2012-Ohio-2382. In this
      case, the issue was raised prior to trial but the trial court did not hold
      the hearing required by R.C. 2945.37(B).

State v. Flanagan, 2017-Ohio-955, 86 N.E.3d 681, ¶ 9 (8th Dist.).

              Not only were the competency and sanity examinations ordered three

months prior to the trial, there was no subsequent mention of the request prior to

trial, during or after. It is clear from the record that Bennett was having issues at

the time of the act. There is no dispute that Bennett’s caseworker accompanied her

to the hospital to have her medications adjusted because they believed that Bennett’s

current medications were not effective.
               This court granted Bennett’s request to extend the time to file her

appellate brief to allow her to provide us with the “court psychiatric clinic reports.”

The reports were submitted to this court under seal.

               The sealed record contains court psychiatric reports issued to the trial

court in December 2017, the receipt of which was not referenced in the record of this

case and was certainly never mentioned by defense counsel or the trial court. As a

reviewing court, we cannot consider the content of the reports as we may not

entertain matters that are not part of the record on appeal. State ex rel. Cotton v.

Ghee, 84 Ohio St.3d 54, 55-56, 701 N.E.2d 989 (1998).

               The judgment entry documenting the competency and sanity at the

time of the act report request was placed on the docket in November 2017.

Apparently, defense counsel in this case appeared the morning of the trial without

knowledge of those facts. A basic review of the file would show that the incident

occurred at MetroHealth Medical Center where Bennett and her caseworker

appeared seeking to have Bennett admitted because the medication Bennett was

taking was not helping her. After approximately five hours of waiting, Bennett

wanted to leave the hospital and, when she was restrained by the officers on the bed

in a face down position, she yelled that she was being raped and attempted to defend

herself by biting the officer.

               Clearly, counsel was on notice of a sanity at the time of the act issue

and a possible competency issue based on the underlying facts and counsel’s duty to

make a reasonable inquiry about Bennett’s history. The trial court asked counsel
directly, “[t]here’s no issue about competency, right?” (Tr. 13.) Counsel’s seemingly

nonchalant response was, “[n]one that I’m aware of, Your Honor. I believe she was

evaluated.” (Tr. 13.).

               This court is aware that the failure to hold a competency hearing is

harmless error where Bennett participated in her own defense and otherwise failed

to demonstrate other “indicia of competency.” State v. Were, 94 Ohio St.3d 173, 175,

2002-Ohio-481, 761 N.E.2d 591. State v. Bock, 28, Ohio St.3d 108, 502 N.E.2d 2016

(1986), paragraph one of the syllabus. However, the pertinent issue here is Bennett’s

sanity at the time of the act and not her competency at the time of trial.

               According to the report, Bennett informed the psychiatrist that her

attorney did not tell her about the sanity evaluation portion of the examination and

she wanted to speak with him first. In light of Bennett’s complaints about counsel’s

asserted lack of cooperation and responsiveness, such as telling Bennett that if she

wanted a MetroHealth doctor to testify at her trial, she should “call the doctor”

herself or have her caseworker do it, we do not conclude that the sanity at the time

of the act defense should be deemed abandoned.

               Counsel’s performance was obviously deficient and prejudiced

Bennett’s defense. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373; and Reed, 74 Ohio St.3d 534, 660

N.E.2d 456.     Our findings render the remaining assignments of error moot.

App.R. 12(A)(1)(c).
               Judgment reversed and conviction vacated. We remand the case to

the trial court for a competency and sanity at the time of the act determination.

Upon determination, the trial court shall conduct further proceedings as required

by law.

      It is ordered that appellant recover from 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.



ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION


SEAN C. GALLAGHER, P.J., CONCURRING:

               I concur fully with the majority. This is a close call on the question of

prejudice. In this case, the psychiatric report, which has been included in the

appellate record without objection, indicates that Bennett was competent to stand

trial. Further, the report sets forth that Bennett declined to participate in the

evaluation of her sanity regarding her conduct at the hospital. At all times, Bennett

portrayed herself to be fully informed and capable of asking for clarification during

the entire trial process.
               Significantly, Bennett appears to have abandoned any assertion that

she was insane at the time of the act. This arguably led the trial court to minimize

the need for close scrutiny of her mental state. “The failure to hold a competency

hearing is harmless error where the defendant proceeds to participate in the trial,

offers his own testimony in defense and is subject to cross-examination, and the

record fails to reveal sufficient indicia of incompetency.” State v. Bock, 28 Ohio

St.3d 108, 108, 502 N.E.2d 1016 (1986), paragraph one of syllabus. As noted by the

majority, an evidentiary hearing on the competency issue is only constitutionally

required where there are “sufficient indicia of incompetency to call into doubt

defendant’s competency to stand trial.” State v. Were, 94 Ohio St.3d 173, 175, 2002-

Ohio-481, 761 N.E.2d 591. Arguably, Bennett’s decision not to participate in the

evaluation of her sanity was invited error. As the court-appointed psychiatrist

indicated, Bennett was notified that the sanity evaluation could proceed if Bennett

decided to assert the defense. Nothing in the record demonstrates her desire to

assert the affirmative defense of insanity.

               Nevertheless, in my view, her conduct on the date of the event and her

past mental history required something more by counsel than an off-the-cuff remark

regarding competency. The failure to even address sanity in light of these factors

crosses the prejudice line for me. Admittedly, I am deciding the prejudice question

on what I perceive as a failure of the procedure, but not to address the sanity

question given Bennett’s behavior and past history eliminated her only possible

defense. I therefore concur with the majority.
