[Cite as In re Andrew W., 2014-Ohio-1576.]


                                      COURT OF APPEALS
                                     KNOX COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




IN RE: ANDREW W.                             :     JUDGES:
                                             :     Hon. William B. Hoffman, P.J.
                                             :     Hon. Sheila G. Farmer, J.
                                             :     Hon. Craig R. Baldwin, J.
                                             :
                                             :     Case No. 13-CA-24
                                             :
                                             :     OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Juvenile Division, Case Nos.
                                                   2121387 and 2131207



JUDGMENT:                                          Reversed and Remanded




DATE OF JUDGMENT:                                  April 11, 2014




APPEARANCES:

For Appellee                                       For Appellant

JOSEPH D. SAKS                                     CHARLYN BOHLAND
117 East High Street                               250 East High Street
Suite 234                                          Suite 1400
Mount Vernon, OH 43050                             Columbus, OH 43215
Knox County, Case No. 13-CA-24                                                          2

Farmer, J.

       {¶1}   On December 6, 2012, a complaint was filed against appellant, Andrew

W., a juvenile, age sixteen, alleging he was a delinquent child for committing two counts

of rape in violation of R.C. 2907.02 and one count of violating the liquor-control law in

violation of R.C. 4301.69 (Case No. 2121387). Said charges arose from an incident

involving appellant and a sixteen year old girl, Mary S.

       {¶2}   On January 10, 2013, appellant raised the issue of his competency. By

journal entry filed January 15, 2013, the trial court ordered a competency evaluation.

The evaluation was performed on January 29, 2013, and a report was filed on February

11, 2013. A competency hearing was never held and a competency determination was

never made.

       {¶3}   On June 7, 2013, a second complaint was filed against appellant, alleging

he was a delinquent child for committing two counts of gross sexual imposition in

violation of R.C. 2907.05 and one count of tampering with evidence in violation of R.C.

2921.12 (Case No. 2131207). These charges arose from the same incident involving

Mary S.

       {¶4}   A trial commenced on June 24, 2013. The trial court found appellant

delinquent of one of the rape counts, the liquor-control law violation, one of the gross

sexual imposition counts, and the tampering count.         The trial court dismissed the

forcible rape and forcible gross sexual imposition counts. By journal entry filed July 10,

2013, the trial court committed appellant to the Ohio Department of Youth Services for a

minimum aggregate term of one year to a maximum term until his twenty-first birthday.
Knox County, Case No. 13-CA-24                                                    3


      {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶6}   "ANDREW WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW

WHEN THE JUVENILE COURT FAILED TO HOLD A HEARING TO DETERMINE

COMPETENCY        AND     FAILED     TO      ISSUE     A    WRITTEN     COMPETENCY

DETERMINATION,       IN   VIOLATION     OF      R.C.   2152.58,   THE   FOURTEENETH

AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTILE I, SECTION

16 OF THE OHIO CONSTITUTION."

                                           II

      {¶7}   "THE JUVENILE COURT VIOLATED ANDREW'S RIGHT TO DUE

PROCESS OF LAW WHEN IT ADJUDICATED HIM DELINQUENT IN THE ABSENCE

OF SUFFICIENT, CREDIBLE, AND COMPETENT EVIDENCE, IN VIOLATION OF THE

FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, ARTICLE I, SECTION

16 OF THE OHIO CONSTITUTION, AND JUVENILE RULE 29(e)(4)."

                                          III

      {¶8}   ANDREW WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW

WHEN HE WAS ADJUDICATED DELINQUENT OF R.C. 2907.02(A)(1)(c) AND R.C.

2907.05(A)(5) BECAUSE THE STATUTES FAIL TO PROVIDE GUIDELINES

DESIGNATING WHICH ACTOR IS THE VICTIM AND WHICH IS THE OFFENDER,

AND RESULTS IN THE ARBITRARY AND DISCRIMINATORY ENFORCEMENT OF

THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED
Knox County, Case No. 13-CA-24                                                        4


STATES CONSTITUTION AND ARTICLE I, SECTION 16, OF THE OHIO

CONSTITUTION."

                                           IV

       {¶9}   ANDREW WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTUION AND ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION."

                                            I

       {¶10} Appellant claims the trial court erred in failing to hold a competency

hearing and failing to make a written determination as to competency pursuant to R.C.

2152.58. We agree.

       {¶11} A competency evaluation report was filed on February 11, 2013.           A

competency hearing was never held and a competency determination was never made.

       {¶12} R.C. 2152.58 governs competency hearings. Subsections (A) and (D)(1)

state the following:



              (A) Not less than fifteen nor more than thirty business days after

       receiving an evaluation under division (A) of section 2152.57 of the

       Revised Code or not less than fifteen nor more than thirty business days

       after receiving an additional evaluation under division (E) of that section,

       the court shall hold a hearing to determine the child's competency to

       participate in the proceeding.
Knox County, Case No. 13-CA-24                                                         5

             (D)(1) Except as otherwise provided in this division, the court shall

      make a written determination as to the child's competency or

      incompetency based on a preponderance of the evidence within fifteen

      business days after completion of the hearing. The court, by journal entry,

      may extend the period for making the determination for not more than

      fifteen additional days.   If the court extends the period for making the

      determination, it shall make the written determination within the period as

      extended. (Emphasis added.)



      {¶13} The state concedes the statutes were not followed, but argues harmless

error because the record fails to reveal sufficient indicia of incompetency à la State v.

Bock, 28 Ohio St.3d 108, paragraph one of the syllabus:



             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. (Pate v. Robinson [1966], 383

      U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 and Drope v. Missouri [1975], 420

      U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103, construed and followed.)



      {¶14} The Bock case involved an adult defendant. As noted by the Bock court

at 110, the landmark case on this issue is Pate v. Robinson, 383 U.S. 375 (1966). In

Pate, again, an adult defendant, the United States Supreme Court examined the issue
Knox County, Case No. 13-CA-24                                                          6


of competency under Illinois law via a habeas corpus petition. The court noted defense

counsel failed to demand a "sanity hearing" as required under Illinois law.

Nevertheless, the Pate court granted habeas corpus relief, finding the following at 385-

386:



              The Supreme Court of Illinois held that the evidence here was not

       sufficient to require a hearing in light of the mental alertness and

       understanding displayed in Robinson's 'colloquies' with the trial judge. 22

       Ill.2d, at 168, 174 N.E.2d, at 823. But this reasoning offers no justification

       for ignoring the uncontradicted testimony of Robinson's history of

       pronounced irrational behavior. While Robinson's demeanor at trial might

       be relevant to the ultimate decision as to his sanity, it cannot be relied

       upon to dispense with a hearing on that very issue. Cf. Bishop v. United

       States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), reversing, 96

       U.S.App.D.C. 117, 120, 223 F.2d 582, 585 (1955).               Likewise, the

       stipulation of Dr. Haines' testimony was some evidence of Robinson's

       ability to assist in his defense. But, as the state prosecutor seemingly

       admitted, on the facts presented to the trial court it could not properly have

       been deemed dispositive on the issue of Robinson's competence.



       {¶15} Nine years later, the United States Supreme Court again revisited the

issue of competency, this time under Missouri law, in Drope v. Missouri, 420 U.S. 162

(1975).   In Drope, defense counsel prior to trial requested a continuance so the
Knox County, Case No. 13-CA-24                                                            7


defendant could obtain psychiatric treatment.      The motion included a report from a

psychiatrist recommending the treatment. No action was taken on the motion, although

the case was continued. Subsequently, defense counsel objected to the rescheduled

trial date, citing the defendant was not of "sound mind" and needed further psychiatric

evaluation. The trial court denied the objection and proceeded with the trial. During

trial, the defendant's wife testified to her husband's irrational behavior and the defendant

attempted suicide. The Drope court at 180 concluded there was "sufficient doubt of [the

defendant's] competence to stand trial to require further inquiry on the question." The

Drope court explained the following (Id.):



              The import of our decision in Pate v. Robinson is that evidence of a

       defendant's irrational behavior, his demeanor at trial, and any prior

       medical opinion on competence to stand trial are all relevant in

       determining whether further inquiry is required, but that even one of these

       factors standing alone may, in some circumstances, be sufficient. There

       are, of course, no fixed or immutable signs which invariably indicate the

       need for further inquiry to determine fitness to proceed; the question is

       often a difficult one in which a wide range of manifestations and subtle

       nuances are implicated. That they are difficult to evaluate is suggested by

       the varying opinions trained psychiatrists can entertain on the same facts.



       {¶16} Prior to examining these two cases, the Bock court determined: "The

United States Supreme Court has approached on a case-by-case basis the question of
Knox County, Case No. 13-CA-24                                                             8

whether the failure to grant a competency hearing is reversible error." Bock at 109-110.

(Emphasis added.)

       {¶17} We note the Bock decision issued on December 24, 1986 was decided

well before the enactment of the juvenile competency laws, R.C. 2152.51-2152.59

(effective September 30, 2011). In Bock, the defendant was an adult who "testified

extensively at trial under direct, cross-, redirect and recross-examinations with no

apparent behavior which would lead this court to believe that he was not competent to

stand trial." Bock at 111. We find the facts sub judice to be distinguishable from Bock.

       {¶18} Appellant herein is a juvenile and subject to the statutes set forth in R.C.

2152.51-2152.59. As cited above, R.C. 2152.58(A) and (D)(1) state a trial court, after

receiving an evaluation, shall hold a hearing and shall make a written determination as

to competency. The evaluation on appellant was performed on January 29, 2013, and a

report was filed on February 11, 2013. The report was addressed to the trial court

judge. No other action, notice, motion, discovery, or finding in the record was taken

relative to competency. There is no evidence to suggest that defense counsel saw the

report, stipulated to the report, or objected to the report.

       {¶19} The matter of appellant’s competency was first raised during the detention

hearing held on November 13, 2012, wherein the Director of Juvenile Probation, Joseph

Mazzari, stated: "Your Honor, if I may help the court in understanding Andrew's needs

and disabilities. He really truly, I don't know if he fully understands the process here. I

know he is here with his mother, but I would make the court aware that it might be best

if he had an attorney." Appellant's participation in the hearing was monosyllabic at best,

limited to "yeah" or "yes."
Knox County, Case No. 13-CA-24                                                           9


       {¶20} Following the request for a competency evaluation, the trial court found

"there is a reasonable basis to conduct a competency evaluation" and ordered an

evaluation. See Journal Entry filed January 15, 2013. As stated above, the record is

devoid of anything further on the competency issue.

       {¶21} A trial commenced on June 24, 2013. Appellant did not testify during the

trial, but his mother testified concerning his disabilities (ADHD and bipolar) and his need

for special classes (IEP). T. at 256-258. She explained appellant took "Trazodone" for

aid in sleeping and was not to take alcohol with the medicine.         Id.   Appellant has

reported being unable to remember things while taking the medication.           T. at 259.

Appellant told the police he had taken his medicine, had been drinking, and could not

remember doing anything to Mary S. T. at 68-69, 77-79, 128-130, 155-156.

       {¶22} Although the confidential evaluation concluded appellant was competent

under the factors listed in R.C. 2152.56(B), the evaluation noted appellant had been

receiving some kind of mental health treatment for approximately eight years, and "does

present with Borderline Intellectual Functioning."

       {¶23} Unlike the defendant in Bock, appellant herein did not testify. The record

establishes that appellant had learning and understanding problems.           Further, the

defendant in Bock was an adult subject to the adult competency statutes which required

a hearing and an order of competency, but no findings. R.C. 2945.37(B)-(G), R.C.

2152.58(D)(1).

       {¶24} Based upon the facts of this case, we find an indicia of incompetency to

warrant the hearing and a written determination as to competency as mandated under

R.C. 2152.58.
Knox County, Case No. 13-CA-24                                                        10


      {¶25} We note there is no evidence that defense counsel objected to proceeding

with the trial despite no written determination as to competency. Accordingly, we will

consider the trial court's error under a plain error standard. Crim.R. 52(B). Was the

error so plain that it created an "obvious defect in the trial proceedings" and the error

"affected the outcome of the trial"? See, State v. Barnes, 94 Ohio St.3d 21, 27, 2002-

Ohio-68. We answer these questions in the affirmative.

      {¶26} From a review of the record, we are unable to determine if defense

counsel even read the report. If so, was the report stipulated to? If not, would defense

counsel have asked for a second evaluation under R.C. 2152.57(E)(1)? Would defense

strategy been different affecting the outcome of the trial? We do not know. As Justice

Wright stated in his dissenting opinion in Bock at 113 after outlining the majority's

reasoning:



             The most charitable thing I can say about such a line of reasoning

      is that it begs the question, is circular in character and is fatally flawed.

      Common sense dictates that no defendant can make a record of lack of

      competency absent the findings and hearing contemplated by R.C.

      2945.37 and 2945.371 [R.C. 2152.58 herein]. The trial court's failure to

      comply with these statutory mandates made the development of such a

      record unlikely at best.



      {¶27} Upon review, we find the trial court erred in failing to hold a hearing and

issue a written determination as to competency under R.C. 2152.58
Knox County, Case No. 13-CA-24                                                     11


      {¶28} Assignment of Error I is granted. Based upon this decision, the remaining

assignments of error are moot.

      {¶29} The judgment of the Court of Common Pleas of Knox County, Ohio,

Juvenile Division is hereby reversed.   The matter is remanded to the trial court to

conduct a competency hearing and issue a written determination as to competency.

By Farmer, J.

Hoffman, P.J. and

Baldwin, J. concur.




SGF/sg 327
