[Cite as State v. Shepherd, 2009-Ohio-3317.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY



STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                   CASE NO. 16-09-03

    v.

TERRY DALE SHEPHERD,                                            OPINION

    DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 08-CR-0065

                                      Judgment Affirmed

                               Date of Decision: July 6, 2009




APPEARANCES:

         Howard A. Elliott for Appellant

         Jonathan K. Miller for Appellee
Case No. 16-09-03




PRESTON, P.J.

       {¶1} Defendant-appellant, Terry Dale Shepherd (hereinafter “Shepherd”),

appeals the Wyandot County Court of Common Pleas’ judgment of conviction.

For the reasons that follow, we affirm.

       {¶2} On November 6, 2008, the Wyandot County Grand Jury indicted

Shepherd on one count of aggravated murder in violation of R.C. 2903.01(B), an

unclassified felony, for the September 28-29, 2008 murder of Claradell J. Keller

(D.O.B. 3/20/1930). (Doc. No. 1). On November 7, 2008, Shepherd was arraigned

and entered a plea of not guilty. (Nov. 7, 2008 Tr. at 7); (Doc. No. 13). Attorney

Robert A. Grzybowski was appointed as Shepherd’s counsel. (Doc. No. 13).

       {¶3} On December 5, 2008, Shepherd changed his plea to guilty pursuant

to a plea agreement. (Dec. 5, 2008 Tr. at 2, 8-9, 14-15); (Doc. Nos. 23, 25).

       {¶4} On February 12, 2009, the trial court sentenced Shepherd to life

imprisonment without the possibility of parole. The trial court ordered that the

sentence be served consecutively to the sentence imposed in Shepherd’s other case

in Hardin County, Ohio. (Doc. No. 37).

       {¶5} On February 18, 2009, Shepherd filed a notice of appeal. (Doc. No.

42). Shepherd now appeals raising two assignments of error for our review.




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                        ASSIGNMENT OF ERROR NO. I

       IN LIGHT OF THE MATTERS IN THE RECORD BRINGING
       INTO QUESTION THE APPELLANT’S COMPETENCY,
       THERE WAS NO KNOWINGLY, VOLUNTARILY AND
       INTELLIGENTLY MADE WAIVER OF RIGHTS BY
       APPELLANT AND THE TRIAL COURT ERRORED [SIC] AS
       A MATTER OF LAW AND COMMITTED REVERSIBLE
       ERROR IN ACCEPTING THE PLEA OF GUILTY FROM
       THE APPELLANT WHEN IT DID NOT CONDUCT A
       COMPETENCY EVALUATION BEFORE ACCEPTING THE
       APPELLANTS [SIC] PLEA OF GUILTY.

       {¶6} In his first assignment of error, Shepherd argues that the trial court

erred in accepting his guilty plea without first conducting a competency

evaluation. Specifically, Shepherd argues that the evidence in the record indicated

that he had a history of mental health issues and was under the influence of several

psychotropic drugs at the time of the change of plea hearing. Shepherd further

points to the fact that he was confused over whether he was a U.S. citizen even

though he knew he was born in the U.S.

       {¶7} The State, however, argues that a criminal defendant is presumed

competent, and the record does not contain sufficient indicia of incompetency.

Furthermore, the State points out that neither the trial court, nor the prosecutor, nor

defense counsel raised any issue as to Shepherd’s competency during any of the

proceedings. The State also argues that the trial court specifically found Shepherd

competent, and that his use of medications alone does not render him incompetent.




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We agree with the State that the record fails to indicate sufficient indicia of

incompetency such that a competency hearing was required.

       {¶8} A defendant has a constitutional right to a competency hearing only

when 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 (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, citations

omitted. The test to determine competency to stand trial is whether the defendant

“‘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.’” Berry, 72 Ohio St.3d at 359,

quoting Dusky v. United States (1960), 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824.

However, a defendant is presumed competent to stand trial, and the trial court may

not find a defendant incompetent to stand trial solely because he/she is receiving

or has received psychotropic drugs or other medication. R.C. 2945.37(G), (F).

       {¶9} A competency hearing is mandatory under R.C. 2945.37(B) only if

the issue of competency is raised prior to trial. State v. Bekesz (1991), 75 Ohio

App.3d 436, 441, 599 N.E.2d 803. The burden is on the defendant to put forth

sufficient evidence to raise the issue. State v. Bailey (1992), 90 Ohio App.3d 58,

67, 627 N.E.2d 1078. Whether to conduct a competency hearing sua sponte under

R.C. 2945.37(B) is left to the trial court’s discretion. State v. Smith (2000), 89

Ohio St.3d 323, 329, 731 N.E.2d 645. Under those circumstances, appellate


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review is limited to whether the trial court abused its discretion. Id. An abuse of

discretion is more than an error of law; rather, it implies that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When reviewing the trial court’s

decision on whether to conduct a competency hearing sua sponte, an appellate

court should give deference to the trial court since it was able to see and hear what

transpired in the courtroom. Smith, 89 Ohio St.3d at 330.

       {¶10} As the State points out, the issue of competency was not raised by

any of the parties during the proceedings. At the arraignment, the trial court asked

defense counsel, “Mr. Grzybowski, are you satisfied your client’s competence

[sic] to understand the nature of these proceedings?” (Nov. 7, 2008 Tr. at 5).

Defense counsel responded, “Yes, Your Honor,” and the trial court made a finding

of competency. (Id.). Thereafter, the following colloquy occurred:

       THE COURT: * * * Are you a citizen of the United States?
       MR. SHEPHERD: I -- I don’t think so.
       THE COURT: You do --
       MR. SHEPHERD: I’ve never registered.
       MR. GRZYBOWSKI: No. Are you a citizen of the United
       States? Were you born here?
       MR. SHEPHERD: Yeah.
       THE COURT: So you -- you were born in the United States of
       America?
       MR. SHEPHERD: Yes.
       THE COURT: The Court will find the defendant to be a U.S.
       citizen. * * *




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(Id. at 5-6). Thereafter, the trial court asked Shepherd whether he understood the

nature of the charges, to which Shepherd responded, “Yes, Aggravated Murder.”

(Id. at 6). Following these questions, Shepherd entered a plea of not guilty. (Id. at

7). No issue as to competency was raised during the arraignment.

       {¶11} At the change of plea hearing, the trial court again inquired into

Shepherd’s competence and the voluntariness of his change of plea. (Dec. 5, 2008

Tr.). The following discussion occurred:

       THE COURT: Do you remember the first time you were here at
       your arraignment and I asked you some questions such as how
       far you went in school and those kinds of things?
       MR. SHEPHERD: Yes.
       THE COURT: Since that time, have you suffered from or been
       treated for any mental illness?
       MR. SHEPHERD: No. Well, I just done -- I (Inaudible) mental
       illness, but --
       THE COURT: I’m sorry, I couldn’t understand --
       MR. SHEPHERD: I just have an ongoing mental illness.
       THE COURT: Does that affect your ability --
       MR. SHEPHERD: No.
       THE COURT: -- to think clearly?
       MR. SHEPHERD: I mean, it just – I’m just on medication.
       That’s all.
       THE COURT: Does that medication affect your ability to think
       clearly?
       MR. SHEPHERD: No. No.
       THE COURT: Are you under the influence of any alcohol --
       well, you’ve already said you’re under the influence of --
       MR. SHEPHERD: That’s correct.
       THE COURT: -- some medications?
       MR. SHEPHERD: Right. No. drug --
       THE COURT: Aside from the medications that --
       MR. SHEPHERD: No drugs or alcohol.
       ***
       THE COURT: And the medication you’re on is what?


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      MR. SHEPHERD: Uhm, Trazodone, Lithium, uhm, Prozac,
      uhm, -- there’s some – there’s some other -- (Inaudible).
      ***
      THE COURT: Mr. Grzybowski, are you satisfied your client’s
      competent to understand the nature of these proceedings?
      MR. GRZYBOWSKI: Your Honor, I am confident that he
      understands, and, uhm, the reason I feel that way is that we’ve
      had the opportunity to discuss this matter on several occasions.
      Uhm, and I am aware of his -- the issues regarding his mental
      health; however, that medication he takes on a regular basis.
      And it is my understanding, at least it’s been represented to me,
      that, uhm, it has no impact upon his ability to understand, uhm,
      legal proceedings, in particular this one.
      THE COURT: Well, I was led to understand you had an
      opportunity to consult with Mr. Shepherd today?
      MR. GRZYBOWSKI: That’s correct, ma’am.
      THE COURT: And you felt he was coherent?
      MR. GRZYBOWSKI: Yes, ma’am. We had a conversation and
      I did feel and I do feel that he is coherent.
      THE COURT: So you’re satisfied he’s competent?
      MR. GRZYBOWSKI: Yes, ma’am.
      THE COURT: All right. The Court will deem the defendant
      competent. Mr. Shepherd, are you a citizen of the United
      States?
      MR. SHEPHERD: Yes.

(Id. at 2-5). When the trial court asked Shepherd why charges were filed against

him, Shepherd stated:

      Oh, I broke into a house. There was a lady there. I was
      burglarizing the place. She surprised me just as much as I
      surprised her. Uhm, I, uhm, tied her up with a chord [sic] while
      I went through everything in the house. And then I got --
      realized, you know, I can’t leave her because everybody knows
      me in the area, so I strangled and suffocated her at the same
      time and I put her on the bed and then set the house on fire and
      I left.




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(Id. at 14). At the sentencing hearing, the trial court asked defense counsel if there

was any legal cause why sentence should not be pronounced, to which counsel

replied, “None, Your Honor.” (Feb. 12, 2009 Tr. at 3). Again, no issue regarding

Shepherd’s competency was raised at the sentencing hearing.

       {¶12} After independently reviewing the record, we cannot conclude that it

contains sufficient indicia of incompetence such that the trial court abused its

discretion by failing to sua sponte conduct a competency hearing prior to

Shepherd’s guilty plea. The record clearly indicates that the trial court inquired

into Shepherd’s competence, and his attorney stated that he believed that Shepherd

was competent. (Nov. 7, 2008 Tr. at 5); (Dec. 5, 2008 Tr. at 4). The record also

indicates that the trial court inquired into Shepherd’s medications, and both

Shepherd and defense counsel indicated that the medications in no way affected

his ability to understand the nature of the proceedings. (Dec. 5, 2008 Tr. at 2-5).

The fact that Shepherd was taking medications alone is insufficient to find that he

was incompetent. R.C. 2945.37(F). Furthermore, as to his citizenship, it is clear

from the record that Shepherd understood that he was born in the U.S., and at the

change of plea hearing stated, without reservation, that he was a U.S. citizen.

(Dec. 5, 2008 Tr. at 5). Our review of the transcript also reveals that Shepherd

was able to effectively communicate with counsel. (Id. at 4). Shepherd also stated

on the record the factual basis for the charges against him with sufficient clarity to


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undermine any suggestion of incompetence. (Dec. 5, 2008 Tr. at 14).

Furthermore, aside from the transcript of the proceedings, Shepherd declared that

he understood the nature of the charges against him, was satisfied with counsel’s

representation, and was not under the influence of drugs or alcohol in his written

plea agreement. (Doc. No. 23). For all these reasons, we cannot conclude that the

trial court abused its discretion by failing to conduct a competency hearing sua

sponte.

        {¶13} Shepherd’s first assignment of error is, therefore, overruled.

                           ASSIGNMENT OF ERROR NO. II

        THE DEFENDANT WAS NOT AFFORDED EFFECTIVE
        ASSISTANCE OF COUNSEL AND THE DEFENDANT’S
        PLEAS SHOULD BE VACATED WHERE THE STATE
        FAILED TO ADHERE TO ITS OBLIGATIONS UNDER THE
        PLEA AGREEMENT AND TRIAL COUNSEL TOOK NO
        ACTION RESPECTING THE BREACH OF THE PLEA
        AGREEMENT.

        {¶14} In his second assignment of error, Shepherd argues that he was

denied effective assistance of counsel when his counsel failed to ensure that the

State fulfilled its obligations under the plea agreement. Specifically, Shepherd

argues that the State breached the plea agreement by failing to pursue charges

against Brandy1 Shepherd (hereinafter “Brandy”) who he implicated in the crimes.




1
 Although this name is spelled both “Brandy” and “Brandi” in the record, we elect “Brandy” for purposes
of this appeal. (See Doc. No. 23 vs. Dec. 5, 2008 Tr. at 9 & Feb. 12, 2009 Tr. at 4-6).


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       {¶15} The State, on the other hand, argues that Shepherd has failed to

demonstrate that counsel was ineffective since he has failed to demonstrate that

the State breached its plea agreement. In fact, the State alleges that it did pursue

charges against Brandy, which is the subject of a Hardin County Grand Jury

investigation. However, the State acknowledges that legal issues surrounding

spousal privilege may ultimately prevent the grand jury from returning an

indictment against Brandy. The State argues that Brandy’s spousal privilege rights

were explained to Shepherd at his change of plea hearing, but Shepherd made no

attempt to withdraw his guilty plea at that time.

       {¶16} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. To

establish prejudice when ineffective assistance of counsel relates to a guilty plea, a

defendant must show there is a reasonable probability that but for counsel’s

deficient or unreasonable performance he/she would not have pled guilty. State v.

Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing Hill v. Lockhart

(1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.E.2d 203; Strickland, 466 U.S. at

687.




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       {¶17} Shepherd has failed to demonstrate that, but for counsel’s deficient

performance, he would not have pled guilty. Xie, 62 Ohio St.3d at 524, citing Hill,

474 U.S. at 59; Strickland, 466 U.S. at 687.         Shepherd negotiated the plea

agreement in order to avoid the death penalty. (Doc. No. 23). The record reveals

that Shepherd received the benefit of his bargain, and that the trial court sentenced

Shepherd to life imprisonment, even though it might have otherwise sentenced

him to death. (Feb. 12, 2008 Tr. at 28); (Feb. 18, 2009 JE, Doc. No. 37 at 3).

Furthermore, at the change of plea hearing, the trial court inquired as to whether

Shepherd understood that Brandy also might have spousal privileges:

       THE COURT: And, Mr. Shepherd, you understand, and I don’t
       know the circumstances involving a Brandy Shepherd, but it
       speaks to you waiving all immunity, arguments or spousal
       privileges to such testimony, and do you understand if Brandy
       Shepherd is your spouse that she also has those privileges?
       MR. SHEPHERD: Right. That’s correct.
       THE COURT: You understand that?
       MR. SHEPHERD: Yeah.

(Dec. 5, 2008 Tr. at 9-10). Before the trial court sentenced Shepherd, the trial

court asked if there was any legal cause not to proceed to sentencing, to which

defense counsel stated, “None, Your Honor.” (Feb. 12, 2008 Tr. at 3). In his

sentencing statement, Shepherd implicated Brandy in the crimes and expressed his

concern that charges had not been filed against her even though she was also

involved. (Feb. 12, 2009 at 5). Defense counsel then informed the trial court that

Shepherd wanted “to make sure that * * * everyone was aware that Brandy



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Shepherd was involved also. That’s the statement, Your Honor.” (Id. at 5-6).

However, Shepherd did not move to withdraw his guilty plea at that time.

Therefore, we cannot conclude that, but for counsel’s alleged ineffectiveness,

Shepherd would not have pled guilty.

       {¶18} Additionally, the plea agreement states only that the State “will

pursue charges against Brandi Shepherd,” not that Brandy will be convicted or

even indicted. (Doc. No. 23). There is also nothing in the record to demonstrate

that defense counsel failed to ensure that the State pursued charges against

Brandy. Nor is there anything in the record, which demonstrates that the State

has, in fact, failed to pursue charges. The fact of the matter is that counsel was

able to negotiate a plea agreement that guaranteed Shepherd would not face the

death penalty. Under the circumstances of this case, we cannot conclude that

defense counsel’s performance was deficient or unreasonable.

       {¶19} Shepherd’s second assignment of error is, therefore, overruled.

       {¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jnc




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