[Cite as State v. Peeples, 2012-Ohio-1149.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO                                  )    CASE NO. 10 MA 132
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )    OPINION
                                               )
REGINA PEEPLES                                 )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 09 CR 1309

JUDGMENT:                                           Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Paul J. Gains
                                                    Mahoning County Prosecutor
                                                    Atty. Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Atty. Megan Graff
                                                    Comstock, Springer & Wilson Co.
                                                    100 Federal Plaza East
                                                    Suite 926
                                                    Youngstown, Ohio 44503


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                    Dated: March 16, 2012
[Cite as State v. Peeples, 2012-Ohio-1149.]
WAITE, P.J.


        {¶1}     Appellant, Regina Peebles, entered a guilty plea immediately prior to

trial on charges of endangering children and intimidation. On appeal she argues that

the trial court should have found her incompetent, that her plea was not knowingly

and voluntarily entered, and that she received ineffective assistance from trial

counsel. Appellant’s three assignments of error are without merit. The judgment of

the trial court is affirmed.

                 FACTUAL AND PROCEDURAL HISTORY OF THE CASE

        {¶2}     Appellant was indicted by the Mahoning County Grand Jury on

November 24, 2009. The indictment included two counts, the first, a violation of R.C.

2919.22(B)(3), (E)(3), captioned:             “Endangering children,” which provides in

pertinent part:

                 {¶3}     “(B) No person shall do any of the following to a

                 child under eighteen years of age or a mentally or

                 physically handicapped child under twenty-one years of

                 age:

                 {¶4}     ***

                 {¶5}     “(3) Administer corporal punishment or other

                 physical disciplinary measure, or physically restrain the

                 child in a cruel manner or for a prolonged period, which

                 punishment, discipline, or restraint is excessive under the

                 circumstances and creates a substantial risk of serious

                 physical harm to the child;
                                                                                   -2-

              {¶6}   ***

              {¶7}   “[(E)](3) If the offender violates division (B)(2), (B)(3)

              * * * endangering children is a felony * * * [i]f the violation

              results in serious physical harm to the child involved * * *

              endangering children is a felony of the second degree.

       {¶8}   According to the indictment, the conduct that led to the charge occurred

on or about August 24, 2009 and involved the punishment or restraint of N.J., a child

less than seven years old.

       {¶9}   The second count in the indictment is a violation of R.C. 2921.04(B)(D),

captioned: “Intimidation of attorney, victim or witness in criminal case,” which

provides in part:

              {¶10} (B) No person, knowingly and by force or by

              unlawful threat of harm to any person or property, shall

              attempt to influence, intimidate, or hinder the victim of a

              crime in the filing or prosecution of criminal charges or an

              attorney or witness involved in a criminal action or

              proceeding in the discharge of the duties of the attorney or

              witness.

              {¶11} * * *

              {¶12} (D) Whoever violates this section is guilty of

              intimidation of an attorney, victim, or witness in a criminal

              case. * * * A violation of division (B) of this section is a

              felony of the third degree.
                                                                                    -3-

      {¶13} The second count involves statements made to Philip, Dorian, and

Philip Chandler Cox around the dates of October 10, 2009 and November 19, 2009.

      {¶14} Appellant was arraigned on December 8, 2009, entered not guilty pleas

on both counts, and was determined to be indigent. An attorney was appointed to

represent her. A hearing was held on Appellant’s request to modify bond at which

time trial was continued until February 22, 2010 on Appellant’s oral motion.

Appellant’s subsequent motion for dismissal on speedy trial grounds was denied. On

February 17, 2010 appointed counsel filed a motion to withdraw, due to an

irretrievable breakdown in communication. A hearing on counsel’s motion was held

on February 19, 2010, the court denied the motion to withdraw but granted leave for

a motion for determination of competency to be filed and continued the jury trial

pending the competency determination.           Appointed counsel’s motion for a

competency determination was filed and on February 23, 2010 the court entered an

order for forensic examination of Appellant’s competence to stand trial.          The

competency hearing was scheduled for March 25, 2010.            On March 15, 2010,

Appellant filed a pro se motion seeking to have appointed counsel replaced with new

counsel.

      {¶15} The competency hearing was held on March 25, 2010. The trial court

judge questioned Appellant about her understanding of the charges against her, her

rights regarding trial, and her understanding of the functions of the judge, the

prosecutor, and the jury relative to trial and court procedure. (Competency Tr., pp. 6-

8.) The judge also inquired as to Appellant’s medical and psychological history.

(Competency Tr., pp. 9-11.) Appellant indicated that in 1995 she was under the care
                                                                                        -4-

of a physician for “a traumatic incident” that resulted in “delusional episodes” and

hospitalization. At that time she was prescribed Risperdal for depression, “but they

took me off of that.” (Competency Tr., pp. 9-10.) Appellant further explained that the

treatment had concluded and that she was not currently under treatment, but she had

been meeting with a counselor to discuss her feelings about the current proceedings.

(Competency Tr., p. 10.) The judge confirmed with Appellant that she was no longer

having delusions. Appellant stated: “No, I’m not having any delusions. I’m not

suffering from a traumatic episode -- I didn’t suffer from something traumatic in this

case like, you know, that case was.” (Competency Tr., pp. 10-11.)

       {¶16} The judge questioned Appellant about her agitation and outbursts at the

competency hearing and in prior appearances. Appellant, who had repeatedly “fired”

defense counsel when the hearing began, responded: “No one will listen * * * I been

[sic] repeatedly trying to get across I have not been properly represented in this case.

I feel that I’ve been treated unfair and unjust. * * * [T]he only way I’m getting attention

here now is because of the outbursts. If I wouldn’t have outbursts like that, no one

would even be listening to me right now.” (Competency Tr., pp. 8–9.) The judge

responded that those were reasons to seek new counsel, not explanations of her

behavior and admonished her that the behavior could not continue. The judge gave

both the prosecutor and defense counsel the opportunity to question Appellant

further, but both declined.       The judge found that Appellant was competent.

(Competency Tr., p. 11.) No further competence inquiry was ordered. After this

ruling, the judge granted appointed counsel’s renewed motion to withdraw and

admonished Appellant that she would have to be very cooperative when new counsel
                                                                                    -5-

contacted her because, due to the absence of a speedy trial waiver, time was of the

essence.   (Competency Tr., p. 12.)     No reference to the evaluation ordered on

February 23, 2010 was made during the competency hearing and no such evaluation

was entered into evidence.

      {¶17} New counsel was appointed and trial was reset. On June 2, 2010, prior

to trial, Appellant changed her plea to guilty. Appellant signed a Crim.R. 11(F) form

and the state recommended less than the maximum sentences on each count.

However, the transcript from the plea hearing indicates that although Appellant

signed the form, and wished to plead “guilty,” defense counsel stated that he did not

have an “agreement” with the state because the prosecutor intended to make a

sentencing recommendation that the defense felt was excessive. Defense counsel

emphasized that Appellant’s change of plea was not based on the prosecution’s

recommendation, but was based on her desire to change her plea and defense

counsel’s recommendation. (Change of Plea Tr., p. 3.) The judge then questioned

Appellant at length as to her understanding of her change of plea, the offenses she

was charged with, the possible penalties, the judge’s role as factfinder in sentencing,

the document she signed, the rights she would forego by pleading without a trial, and

confirmed that her plea was freely given. (Change of Plea Tr., pp. 3-10.) Appellant

entered her plea on the record and the judge ordered a pre-sentence investigation.

(Change of Plea Tr., pp. 10-11.)

      {¶18} On July 12, 2010, Appellant was sentenced to four years in prison on

each count in the indictment, to be served concurrently. Appellant, who appeared

with counsel, was given a written notice that she was subject to three years of
                                                                                   -6-

mandatory post-release control, which she refused to sign.        On July 13, 2010,

Appellant’s counsel filed a motion to withdraw and requested that substitute counsel

again be appointed to investigate the possibility of filing a motion to withdraw the

guilty plea, an appeal of the sentence, and a motion for judicial release. Appellant’s

counsel believed that because Appellant blamed counsel for her incarceration, he

would no longer be able to provide effective representation. Counsel’s motion to

withdraw was granted and new counsel was appointed for a third time. Appellant

filed her first notice of appeal, pro se, on August 5, 2010; a second notice of appeal

was filed by counsel on August 11, 2010. Both notices were timely; the second

motion was accompanied by a docketing statement and identified a final appealable

order in compliance with App.R. 3.

                            Assignment of Error No. One

             {¶19} THE TRIAL COURT ABUSED ITS DISCRETION BY

             FAILING TO FIND MS. PEEPLES INCOMPETENT TO

             STAND TRIAL.

                            Assignment of Error No. Two

      {¶20} MS.     PEEPLES’         GUILTY   PLEA     WAS     NOT     KNOWINGLY,

INTELLIGENTLY, NOR VOLUNTARILY ENTERED.

      {¶21} Appellant contends that the “outbursts” and “lashing out,” discussed by

the judge and explained by Appellant as frustration with counsel during the

competency hearing, were in fact sufficient indicia of incompetence to necessitate a

finding of incompetence by the trial court. Appellant further argues in her second

assignment of error that due to her incompetency her guilty plea was not made
                                                                                      -7-

knowingly and intelligently. As the propriety of the trial court’s competency finding is

determinative of both assignments, they will be considered together.

                                   A. Competence

      {¶22} “Fundamental principles of due process require that a criminal

defendant who is legally incompetent shall not be subjected to trial.” State v. Berry,

72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). An adult defendant is presumed to

be competent to stand trial.      R.C. 2317.01 and R.C. 2945.37.          In a criminal

proceeding the competence of the defendant may be raised by the court, sua sponte,

by the prosecutor, or by the defense, both prior to and during trial. R.C. 2945.37(B).

The defense bears the burden of production to rebut the presumption of competence.

State v. Williams, 23 Ohio St.3d 16, 19, 490 N.E.2d 906 (1986). An appellant’s

“failure to cooperate with counsel does not indicate that appellant was incapable of

assisting in his defense.” Berry, supra, at 361. Similarly, “lack of cooperation with

counsel does not constitute sufficient indicia of incompetence to raise doubt about a

defendant’s competence to stand trial,” even when combined with a defendant’s

continual erratic behavior which also “does not undermine the trial court’s findings of

his competence to stand trial.” State v. Vrabel, 99 Ohio St.3d 184, 189, 2003-Ohio-

3193, 790 N.E.2d 303, ¶29-30. 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).

      {¶23} If the issue of competence is raised prior to trial, the court is required to

hold a hearing; prior to the hearing the court may refer the defendant for an
                                                                                     -8-

evaluation, but is not required to do so. Id. At the competency hearing the defendant

must be represented by counsel. R.C. 2945.37(D). Both the state and the defense

are permitted, but not required, to submit evidence. Id. at (E). Neither the fact that a

defendant is receiving or has received treatment for mental illness nor the fact that

defendant has received or is receiving psychotropic drugs or other medication is

sufficient to support an incompetence finding. R.C. 2945.37(F). A defendant may be

found incompetent only if the court finds, by a preponderance of the evidence, that

“because of the defendant’s present mental condition, the defendant is incapable of

understanding the nature and objective of the proceedings against the defendant or

of assisting in the defendant’s defense.”         R.C. 2945.37(G).      A trial court’s

competence finding will not be reversed absent an abuse of discretion.          Vrabel,

supra, at ¶33.

      {¶24} In the matter at bar the trial court, on motion by defense counsel,

ordered an evaluation and held a competency hearing. At the hearing, although no

reference was made to a report, the court questioned Appellant extensively as to her

understanding of the charges against her, the legal process, the role of the court, the

jury, and the prosecutor, as well as her behavior before the court prior to and during

the competency hearing. Appellant was responsive to the court, repeatedly indicated

that she understood, and was able to coherently explain her behavior as well as her

past treatment for depression following some earlier “traumatic event.” (Competency

Tr., pp. 9-10.) Further, Appellant referred to her own pro se filing, on which the court

had not yet ruled, demonstrating a clear understanding of the mechanics of court

procedure.   (Competency Tr., pp. 4-5.)      Appellant offered nothing into evidence
                                                                                     -9-

during the hearing, prior to the hearing, or after the hearing indicating her alleged

incompetence.     Under the circumstances, where the record is “devoid of any

objective indications” that Appellant’s competence should be questioned, and

reliable, credible evidence supports a finding of competence, the trial court’s

competency determination is well within the confines of discretion. State v. Chapin,

67 Ohio St.2d 437, 441-442, 424 N.E.2d 317 (1981). Appellant’s first assignment of

error is without merit and is overruled; the trial court’s finding of competence is

affirmed.

                         B. Validity of Appellant’s guilty plea

      {¶25} Appellant’s second assignment of error argues that because Appellant

is incompetent, her plea was not knowingly or intelligently entered and therefore

invalid. Because the record reflects Appellant’s competence, the only issue apparent

with regard to the validity of Appellant’s change of plea is whether the court complied

with the requirements of Crim.R. 11 when accepting her plea. State v. Kelley, 57

Ohio St.3d 127, 128, 566 N.E.2d 658 (1991), (“When a trial court or appellate court is

reviewing a plea submitted by a defendant, its focus should be on whether the

dictates of Crim. R. 11 have been followed.”)

      {¶26} Section (C)(2) of Crim.R. 11 requires the court, prior to accepting a

guilty plea, to determine that the defendant is “making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved,”

and make the defendant aware of his or her eligibility for “probation or for the

imposition of community control sanctions at the sentencing hearing.”           Crim.R.

11(C)(2)(a). The trial court must further, prior to acceptance, inform the “defendant of
                                                                                    -10-

* * * the effect of the plea of guilty” and ascertain that the defendant understands that

effect as well as the fact that the “court, upon acceptance of the plea, may proceed

with judgment and sentence.” Crim.R. 11(C)(2)(b). Finally, the court must inform the

defendant of, and determine that the defendant understands, that “by the plea the

defendant is waiving the rights to jury trial, to confront witnesses against him or her,

to have compulsory process for obtaining witnesses in the defendant’s favor, and to

require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at

which the defendant cannot be compelled to testify against himself or herself.”

Crim.R. 11(C)(2)(c).

       {¶27} The record reflects that the court punctiliously adhered to Rule 11.

(Change of Plea Tr., pp. 3-10.) Appellant testified that she went through the plea

document, which includes all of the information required by Crim.R. 11, with her

attorney, that her attorney read it for her in its entirety, and that she also read it

herself. (Change of Plea Tr., pp. 9-10.) The record shows that the trial court, once it

found Appellant competent, fully satisfied the requirements of Crim.R. 11 before

accepting Appellant’s change of plea. Appellant’s second assignment of error is

without merit and is overruled.
                                                                                    -11-

                             Assignment of Error No. Three

              {¶28} MS. PEEPLES RECEIVED INEFFECTIVE

              ASSISTANCE OF TRIAL COUNSEL.

       {¶29} Appellant acknowledges that the entry of a guilty plea ordinarily

constitutes waiver of the right to claim ineffective assistance of counsel. Despite this,

she argues that counsel’s substandard assistance rendered her plea “less than

knowing and voluntary.” (Appellant’s Brf., p. 10.) Appellant claims that the fact that

no independent evaluation of competence was requested by trial counsel and

counsel presented no evidence of incompetence at the competency hearing, these

failings somehow directly affected her decision to change her plea.          Appellant’s

argument misstates the nature of the requirement that the guilty plea be knowingly

and intelligently entered.

       {¶30} As earlier discussed, unless the conduct of counsel prevented

Appellant from understanding any of the elements identified in Crim.R. 11, counsel’s

decisions as to the quantity and the nature of evidence up to that point in the

proceeding are irrelevant to Appellant’s plea. Kelley, supra, at 130-131. The effect

of the plea, absent evidence that the plea was in some way coerced, is to waive all

errors that may have taken place prior to the entry of the plea. Appellant fails to

establish any causal relationship between the absence of evidence of incompetence

and her decision to change her plea. The record reflects full compliance with Crim.R.

11 and includes Appellant’s statements that her plea was voluntary, that no one

coerced her to change her plea, and that she had not received anything in exchange

for making her plea. (Change of Plea Tr., p. 8.) Because Appellant has failed to
                                                                                   -12-

establish a connection between the alleged defects in assistance and the validity of

her plea, she waived her right to argue counsel’s alleged ineffectiveness at the time

she entered her plea. It is unnecessary for us to undertake our usual review of

ineffective assistance claims pursuant to Strickland v. Washington, 466 U.S. 668, 689

(1984). Appellant’s third assignment of error is without merit. The judgment of the

trial court is affirmed.

                                     CONCLUSION

       {¶31} The trial court did not err in finding Appellant competent and Appellant’s

guilty plea was knowingly and intelligently entered, in full compliance with Crim.R. 11.

Appellant’s guilty plea waived any argument as to the effectiveness of counsel prior

to the entry of her plea. Appellant’s three assignments of error are overruled and the

judgment of the trial court is affirmed.


Donofrio, J., concurs.

Vukovich, J., concurs.
