[Cite as State v. Matharu, 2017-Ohio-8251.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 26985
                                                    :
 v.                                                 :   Trial Court Case No. 2014-CR-1117
                                                    :
 HARINDER MATHARU                                   :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 20th day of October, 2017.

                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                              .............




TUCKER, J.
                                                                                      -2-




      {¶ 1} Defendant-appellant Harinder Matharu appeals from the trial court's

judgment finding him guilty of aggravated vehicular homicide and sentencing him to seven

years incarceration. Matharu contends that the trial court erred in accepting his plea of

no contest and that his conviction should be reversed because the trial court failed to

have him evaluated for competency prior to his plea.

      {¶ 2} We disagree and, accordingly, affirm the conviction.



                               I. Facts and Proceedings

      {¶ 3} On October 12, 2013, Matharu was involved in an accident when his vehicle

went left of center and collided with a vehicle operated by Amanda Looman. After being

in a coma for ten days, Looman was pronounced brain dead. An eyewitness to the

accident indicated that she observed Matharu’s vehicle approaching behind the witness’s

vehicle traveling at a high rate of speed. The witness further stated that when Matharu

attempted to pass her vehicle, he collided with the car driven by Looman. Matharu’s

blood alcohol level was more than double the legal limit and he was driving under a

suspended license.

      {¶ 4} On May 22, 2014, Matharu was indicted on four counts of aggravated

vehicular homicide in violation of R.C. 2903.06. Matharu entered a plea of not guilty.

On July 14, 2014, Matharu filed a motion to suppress evidence regarding the search of

his vehicle and the admission of the results of a blood draw taken while he was

hospitalized following the crash. A hearing was conducted on September 25, 2014,

following which the trial court overruled the motion to suppress.       A jury trial was
                                                                                        -3-


scheduled for October 27, 2015.

         {¶ 5} During the final pretrial conference conducted on October 19, 2015, Matharu

raised the issue of his mental competence to stand trial. He then filed a document

entitled “Plea of Not Guilty By Reason of Insanity and Suggestion of Incompetency to

Stand Trial.” 1   On October 20, 2015, the trial court conducted a hearing regarding

whether, given Matharu’s suggested incompetency, a competency evaluation was

required. There was no disagreement that immediately after the collision, Matharu spent

40 days in the hospital, and that he was in a coma for approximately two weeks of that

time. Nor was there any disagreement that Matharu had suffered from bleeding in the

brain. Defense counsel indicated that Matharu was unable to recall the events of the

collision and that he also suffered from short-term memory loss. The State cited State

v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (1986) and State v. Hoffer, 2d Dist.

Montgomery No. 17241, 1999 WL 335136 (May 28, 1999), for the proposition that

amnesia, by itself, does not render a defendant incompetent to stand trial.

         {¶ 6} Matharu testified that he has trouble remembering things he has previously

told people and he forgets the details of books he is reading. Likewise, he stated that if

he watches a movie, he sometimes forgets the name of characters. He testified that he

sometimes forgets the day of the week as well as conversations he has had. He testified

that he remembered his counsel meeting with him the week before the hearing, and he

was able to recall some long term memories. He testified that he sometimes has to write

down information in order to remember it.

         {¶ 7} The trial court declined to order a forensic competency evaluation.     On


1   Matharu withdrew his plea of not guilty by reason of insanity.
                                                                                       -4-


October 22, 2015, the court conducted a competency hearing. At that time no further

evidence was submitted, and Matharu rested upon his testimony from the October 20

hearing. The trial court rendered a decision and entry finding Matharu competent to

stand trial. In its decision, the trial court found, in pertinent part:

              Matharu argues he is incompetent to stand trial due to short-term

       memory loss and his inability to remember the events surrounding the

       October 2013 collision. During the October 20, 2015 hearing, Matharu

       testified that he is able to write down matters of importance if he chooses,

       which he has done in the past, and that he recognizes his counsel * * *.

       Matharu remembers meeting with his attorneys at jail and discussing the

       motion to suppress hearings. He was able to recall that his wife informed

       him of the status of his injury, a brain hemorrhage, and that he did not have

       any treatment for this injury. Matharu remembers that his wife worked at

       Kroger in Springfield, Ohio before Matharu’s collision and knew that she

       currently works there. He was able to recall that he was at Miami Valley

       Hospital following the collision and some of the treatment provided.

       Matharu was able to testify that he was employed at a gas station in

       Springfield, Ohio and that he remembered his friend, Jake, whom he met at

       the gas station. Further, Matharu understood that a trial was looming.

              ***

              Matharu’s testimony indicated that though he has some memory

       loss, he has a remaining ability to counsel with his lawyers and an

       understanding to some extent of the legal proceedings in his case.
                                                                                       -5-


      Further, his short-term memory loss is not a component of competency.

      ***

      {¶ 8} The plea hearing was conducted immediately after the competency hearing.

A proper Crim.R. 11 colloquy was conducted.           Matharu engaged with the court

appropriately and denied any problems that would render him unable to voluntarily and

knowingly enter the plea.     Matharu entered a plea of no contest to one count of

aggravated vehicular homicide (OVI, driving under a suspended license) in violation of

R.C. 2903.06(A)(1)(a)/(B)(2)(b)(i). He was sentenced to a term of seven years in prison.

A timely appeal was filed.



                                      II. Analysis

      {¶ 9} Matharu’s sole assignment of error states as follows:

      THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

      REFUSING       TO      ORDER    A   COMPETENCY         EVALUATION       FOR

      DEFENDANT.

      {¶ 10} Matharu contends the trial court erred when it declined to order a

competency evaluation. In support, he argues that the trial court confused the issue of

his short-term memory loss with the issue of his amnesia of the events surrounding the

car crash.   He further argues that the trial court improperly stated that “short-term

memory is not a component of competency.”

      {¶ 11} “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). If a defendant “lacks the capacity to understand the
                                                                                           -6-


nature and object of the proceedings against him, to consult with counsel, and to assist

in preparing his defense[,]” he may not stand trial. State v. Skatzes, 104 Ohio St.3d 195,

2004-Ohio-6391, 819 N.E.2d 215, ¶ 155.

       {¶ 12} This due process right has been codified at R.C. 2945.37, which provides

in pertinent part:

       (B) In a criminal action in a court of common pleas, * * * [the] 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. * * *

       (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 * * *.

       {¶ 13} R.C. 2945.371 provides that if the issue of a defendant's competence to

stand trial is raised under R.C. 2945.37, the court may order one or more, but not more

than three, evaluations of the defendant's present mental condition.            Further, R.C.

2945.37(E) states that “[t]he prosecutor and defense counsel may submit evidence on

the issue of the defendant's competence to stand trial. A written report of the evaluation

of the defendant may be admitted into evidence at the hearing by stipulation, but, if either

the prosecution or defense objects to its admission, the report may be admitted under

sections 2317.36 to 2317.38 of the Revised Code or any other applicable statute or rule.”

       {¶ 14} The use of the word “may” in these statutes indicates that the decision
                                                                                          -7-


whether to order an examination is a matter within the trial court’s discretion. “Taken as

a whole, the provisions of R.C. 2945.37 and 2945.371 support the inference that when

the initial hearing on a competency motion is held, the trial court is only required to give

the defendant, or his counsel, the chance to submit evidence on the issue.” State v.

Bailey, 90 Ohio App.3d 58, 67, 627 N.E.2d 1078 (11th Dist. 1992). “If this evidence

raises a genuine question as to the defendant's competency, the court can order that one

or more evaluations be performed.” Id.; State v. Carson, 2d Dist. Greene No. 2002-CA-

73, 2003-Ohio-5958, ¶ 30.

       {¶ 15} Thus, we review the decision of the trial court regarding competency

evaluations for an abuse of discretion. State v. Curry, 2d Dist. Greene No. 2012-CA-50,

2014-Ohio-3836, ¶ 40; State v. Cook, 2016-Ohio-2823, 64 N.E.3d 350, ¶ 63 (5th Dist.);

State v. Patton, 10th Dist. Franklin No. 08AP-800, 2009-Ohio-1382, ¶ 8. In order to find

that the trial court abused its discretion, we must find that the trial court's decision was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶ 16} In determining whether a defendant is competent to stand trial, the test 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.” ’ ” State v. Neyland, 139 Ohio

St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 32, citing State v. Berry, 72 Ohio St.3d

354, 359, 650 N.E.2d 433 (1995), quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct.

788, 4 L.Ed.2d 824 (1960), quoting the argument of then Solicitor General J. Lee Rankin.

It is with this standard in mind that we review the evidence in this record to determine
                                                                                           -8-


whether Matharu raised a genuine question of his competency to stand trial and whether

the trial court abused its discretion by declining to order an evaluation.

       {¶ 17} A review of the transcript of the October 20, 2015 hearing shows that

Matharu’s responses to questions, both on direct and cross-examination, were coherent

and appropriate. While he did note some issues with his short-term memory, he did not

claim that it affected his ability to understand the proceedings against him or his ability to

assist counsel with his defense. Indeed, he clearly was aware of the nature of the

proceedings, and noted that he is able to, and does, take notes of things he wants to

remember. Further, he was able to remember his attorneys, when he had spent time

conferring with them, and the topic about which they met.

       {¶ 18} We do not agree that the trial court confused the issue of amnesia of the

accident with the issue of short-term memory loss. The amnesia was raised by Matharu

during the initial hearing, and the trial court correctly noted that Matharu’s inability to

remember the collision does not, by itself, render him incompetent. The trial court then

went on to address the short-term memory issues. We do, however, take issue with the

trial court’s blanket statement that short-term memory loss is not a component of

competency. We can envision numerous scenarios in which such memory loss could

effectively negate a criminal defendant’s ability to assist counsel in his defense. But, in

this case, on this record, we cannot say that the trial court abused its discretion in

declining to order an evaluation as Matharu’s testimony did not raise a genuine question

of his ability to understand the proceedings or to aid his attorneys.

       {¶ 19} Accordingly, Matharu’s sole assignment of error is overruled.
                                                                                        -9-


                                     III. Conclusion

       {¶ 20} Matharu’s sole assignment of error being overruled, the judgment of the trial

court is affirmed.



                                     .............



FROELICH, J. and WELBAUM, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
John S. Pinard
Hon. Michael W. Krumholtz
