[Cite as State v. Spencer , 2018-Ohio-4276.]


                                     IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                   :        OPINION

                   Plaintiff-Appellee,            :
                                                           CASE NO. 2017-T-0117
          - vs -                                  :

 RICHARD G. SPENCER, II,                          :

                   Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas.
 Case No. 2017 CR 00212.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor; Michael A. Burnett and Ashleigh Musick,
 Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
 Warren, OH 44481-1092 (For Plaintiff-Appellee).

 Andrew R. Zellers, Richard G. Zellers & Associates, Inc., 3810 Starrs Centre Drive,
 Canfield, OH 44406 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}       Appellant, Richard G. Spencer, II, appeals from his conviction entered in

the Trumbull County Court of Common Pleas pursuant to a jury verdict finding him guilty

of felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(2). Appellant

was sentenced to a prison term of eight years. The trial court’s judgment is affirmed for

the following reasons.
      {¶2}   On December 1, 2016, Kevin Williams lived with his girlfriend and her minor

son A.H. On that day, A.H. was home alone and allowed his uncle, Curtis Ball, and

appellant to enter the house.

      {¶3}   When Williams came home, he found appellant and Ball in the basement.

Appellant was smoking crack.      Ball quickly left, but appellant failed to comply with

Williams’ requests to leave. As a result, Williams and appellant engaged in a physical

altercation, with Williams kicking and punching appellant while dragging him out of the

house.

      {¶4}   Once outside, appellant pulled out a knife and stabbed Williams in the back.

Appellant fled after the stabbing. The injury to Williams required medical attention and a

hospital stay. While he was in the hospital, Williams had to have surgery to remove his

spleen.

      {¶5}   On March 23, 2017, appellant was indicted by the Trumbull County Grand

Jury on the above-stated charge.      He entered a plea of not guilty.     Appellant was

appointed counsel and filed a jury demand.

      {¶6}   On May 17, 2017, appellant’s counsel filed a motion for a competency

hearing, maintaining that appellant suffers from psychological disorders. The trial court

granted the motion after a hearing.

      {¶7}   On July 11, 2017, appellant’s defense counsel filed a motion to withdraw.

Counsel indicated he was leaving the Public Defender’s Office and stated, “arrangements

have been made with the Trumbull County Public Defender’s Office for other counsel to

represent the herein Defendant pertaining to this matter.” The motion was granted on

July 13, 2017. In the days following, appellant made several pro se filings, including




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several exhibits, a jury demand, and a motion titled “Tampering with Evidence.” The

record reflects a different attorney from the Public Defender’s Office began representing

appellant.

       {¶8}   On July 27, 2017, appellant appeared with counsel and waived his speedy

trial rights in open court. The matter was continued for 120 days, and a trial date was set.

       {¶9}   Appellant made several additional pro se filings, including an exhibit, a

“Request for Expert Witness,” and a “Request for: COLEMAN Professional Services;

Subpoena: Medical Records; Documents.”

       {¶10} On October 10, 2017, appellant filed a pro se “Motion for: ineffective and

removable [sic] of counsel and defendant demands to go pro se.” Appellant stated he felt

he was a “victim of an unfair trial.” Appellant maintained his attorney failed to file the

motions he requested, including a request for medical records and several subpoenas.

Appellant further maintained the motions filed by his attorney were detrimental to his case.

Appellant stated:

              So because of this negligence and reckless requests, I feel like I am
              forced to go pro se unless I am provided with an Attorney that will do
              his Job to the fullest of my fair due process of my right to a fair trial,
              and my constitutional right by the Ohio Law. And also not to deprive
              me of anything that is relevant to my defense of my case. And to let
              me use what is credible in my defense and to get what is incredible
              dismissed.

On October 23, 2017, appellant filed a pro se document titled “Exhibit G For Juror’s

Viewing.”

       {¶11} A judgment entry issued on October 24, 2017, states a hearing was held on

July 27, 2017. Counsel for the state of Ohio and counsel for appellant stipulated to the

competency report of Jessica Hart, Ph.D., of the Forensic Psychiatric Center of Northeast




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Ohio. Dr. Hart determined appellant was able to understand the nature and objectives of

legal proceedings and was capable of assisting in his own defense. Based on the

competency evaluation and stipulations, the court found, by a preponderance of the

evidence, that appellant was competent to stand trial.

       {¶12} On November 14, 2017, appellant filed a motion in limine through counsel.

Appellant requested an order limiting inquiry into “medical issues, treatment and physical

results, in the absence of testimony by treating physicians.”

       {¶13} On November 15, 2017, appellant’s counsel filed a motion to withdraw.

Counsel stated that he and appellant were “met with irreconcilable differences.” He

further stated:

              [Counsel] specifically states that he met with [appellant] on
              November 14, 2017, to present the final option of a pleas offer in this
              matter or proceed to trial, to review case materials in this matter and
              to begin final preparation with the defendant for trial. At such time,
              (1) the defendant indicated his intent to renew his request to
              represent himself pro se; (2) defendant stated numerous times that
              he did not want [me] to continue as his counsel; (3) defendant
              indicated that he feels I am colluding with the prosecution to obtain
              his conviction; (4) defendant indicated that I am assisting in
              railroading him; (5) defendant stated several times that he neither
              trust [sic] me, nor has confidence in my legal skill; and (6) defendant
              emphasized the foregoing by stating several times he was firing me.

Counsel requested a continuance for the reason that appellant would neither be able to

secure new counsel nor be able to skillfully proceed pro se by the scheduled trial date.

       {¶14} The matter proceeded to a jury trial on November 20, 2017. Prior to trial,

appellant appeared with counsel but demanded to represent himself pro se. The court

addressed appellant’s request, and appellant signed a written waiver of counsel.

Appellant’s defense counsel agreed to serve as stand-by counsel at the state’s request.

Appellant requested a continuance to gather evidence and subpoena witnesses.


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Appellant stated he needed to subpoena an expert witness to testify to the victim’s

medical records. The trial court denied the continuance, noting the case had already

been continued multiple times. The trial court further denied the motion in limine.

       {¶15} After the jury was empaneled, the prosecutor and appellant gave their

opening statements. Appellant stated: “The statement is, I’m being falsely accused. The

dude tried to rob me and kill me and tried to take my money and said I stabbed him. * * *

The statement is, I’m not guilty.”

       {¶16} The state presented the testimony of Officer Mark Krempasky, A.H., and

Kevin Williams.     Appellant cross-examined Officer Krempasky and A.H.               However,

because appellant continually failed to follow orders from the court, he was held in

contempt while cross-examining A.H. Appellant was ordered to wear a “stun vest.” The

trial court found “a manifest need for restraint for the safety of the people in the courtroom

as well as the parties, court personnel. And it’s the least restrictive means we can do at

this time.” The court addressed appellant to explain that if he failed to listen to the court’s

commands, the deputy would stun him. Appellant replied: “I’ve been off my meds. I’m a

mental health patient. I feel this is unconstitutional, and I feel y’all violating my rights. * *

* I ain’t been on medication in 90 days. I’m incompetent, but you forcing me to go to trial.”

The court ordered stand-by counsel to take over representation of appellant during trial.

Appellant did not object.

       {¶17} Defense counsel cross-examined A.H. and Williams. After the close of the

state’s evidence, defense counsel made a motion for judgment of acquittal pursuant to

Crim.R. 29. The motion was denied.




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       {¶18} Defense counsel presented the testimony of appellant’s mother, A.H.’s

cousin, and a criminal investigator from the Public Defender’s office.

       {¶19} During closing arguments, defense counsel asserted the affirmative

defense of self-defense. The state objected. The trial judge stated: “Counselor, there’s

absolutely not one shred of evidence in this case of self-defense. He never testified. You

will not go there. You will not touch that instruction. It’s not going to be in the jury

instructions.”

       {¶20} Defense counsel renewed the Crim.R. 29 motion, which was again denied.

       {¶21} The jury found appellant guilty as charged.       The matter proceeded to

sentencing on November 21, 2017. The trial court’s sentencing entry was filed on

November 29, 2017.

       {¶22} Appellant noticed a timely appeal and was appointed appellate counsel.

Appointed counsel filed a motion for leave to withdraw and an appellate brief pursuant to

Anders v. California, 386 U.S. 738 (1967).

       {¶23} As outlined in Anders, “if counsel finds his client’s case to be wholly

frivolous, counsel should advise the court and request permission to withdraw; * * * the

request to withdraw must be accompanied by a brief referring to anything in the record

that might arguably support the appeal; [and] * * * time must be allowed for the client to

raise any points he chooses.” State v. Spears, 11th Dist. Ashtabula No. 2013-A-0027,

2014-Ohio-2695, ¶5, citing Anders at 744. The appellate court must then conduct “a full

examination of all the proceedings, to decide whether the case is wholly frivolous.”

Anders, supra, at 744. If the appellate court determines the appeal is wholly frivolous, it




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may grant the request to withdraw and dismiss the appeal. Id. If, however, the court

concludes the appeal is not frivolous, it must appoint new counsel for the appellant. Id.

       {¶24} In his brief, appellate counsel determined “that there are no meritorious

arguments for appeal.” Counsel, however, indicates he conferred with appellant to review

the issues and identifies three potential errors for review.

       {¶25} By judgment entry on May 17, 2018, this court granted appellant leave to

file a pro se submission raising any additional arguments in support of his appeal.

Appellant filed no additional arguments.

       {¶26} The first potential error states: “Appellant’s Sixth Amendment right to

effective assistance of counsel was infringed upon by his trial counsel and thus suffered

a prejudice in the outcome of his case.”

       {¶27} In order to prevail on an ineffective assistance of counsel claim, an appellant

must demonstrate that trial counsel’s performance fell “below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel’s performance.”

State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus (following

Strickland v. Washington, 466 U.S. 668 (1984)). “‘[T]here is no reason for a court deciding

an ineffective assistance claim to approach the inquiry in the same order or even to

address both components of the inquiry if the defendant makes an insufficient showing

on one.’” Id. at 143, quoting Strickland, supra, at 697.

       {¶28} There is a general presumption that trial counsel’s conduct is within the

broad range of professional assistance. Id. at 142. Debatable trial tactics generally do

not constitute deficient performance. State v. Phillips, 74 Ohio St.3d 72, 85 (1995). In

order to show prejudice, the appellant must demonstrate a reasonable probability that,




                                              7
but for counsel’s error, the result of the proceeding would have been different. Bradley,

supra, at paragraph three of the syllabus.

       {¶29} Furthermore, trial counsel’s decision not to pursue every possible trial tactic

for strategical reasons does not deprive a defendant of effective assistance of counsel.

State v. Brown, 38 Ohio St.3d 305, 319 (1988) (citation omitted). A defendant has no

right to a choice of counsel and “no constitutional right to determine trial tactics and

strategy of counsel.” State v. Donkers, 11th Dist. Portage Nos. 2003-P-0135 & 2003-P-

0136, 2007-Ohio-1557, ¶183, citing State v. Cowans, 87 Ohio St.3d 68, 72 (1999) & State

v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶150. “Rather, decisions about viable

defenses are the exclusive domain of defense counsel after consulting with the

defendant.” Id.

       {¶30} Prior to trial, appellant expressed his dissatisfaction with counsel’s trial

tactics. From the record, it is clear trial counsel intended to raise the affirmative defense

of self-defense. Appellant, however, asserted his innocence and indicated he disagreed

with counsel’s suggestion that he should testify. Appellant further argued counsel should

have subpoenaed Curtis Ball and explained he needed an expert witness to testify to the

victim’s “medical records about the stab wound in the front.” However, during trial, there

was testimony presented that Curtis Ball fled prior to the stabbing. After a thorough review

of the record, the probative value of his testimony is therefore not apparent. The probative

value of the medical records and need for an expert witness is similarly unclear.

       {¶31} Moreover, appellant’s claim of ineffective assistance of counsel is

undermined by the fact that he waived his right to counsel and represented himself during

a portion of his trial.




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       {¶32} Accordingly, we determine that counsel’s performance did not fall below a

reasonable level of representation and that appellant was not prejudiced by any alleged

deficient performance.

       {¶33} Appellant’s first potential error is therefore without merit.

       {¶34} The second potential error states: “Appellant was incompetent to stand trial

at the time of trial, as he was not taking his medication and thus his due process right to

a fair trial was violated.”

       {¶35} “[A]n appellate court will affirm a trial court’s finding of competency when

the record contains some competent, credible evidence supporting such a finding.” State

v. Clemmons, 11th Dist. Trumbull No. 95-T-5305, 1996 WL 760933, *3 (Dec. 20, 1996).

       {¶36} R.C. 2945.37(G) provides that a defendant is incompetent to stand trial if

“the defendant is incapable of understanding the nature and objective of the proceedings

against the defendant or of assisting in the defendant’s defense[.]” Criminal defendants

are presumed to be competent to stand trial. Id.

       {¶37} The test for determining whether a defendant is competent to stand trial is

whether the defendant has sufficient present ability to consult with his or her attorney with

a reasonable degree of rational understanding and whether the defendant has a rational

and factual understanding of the proceedings against him. State v. Neyland, 139 Ohio

St.3d 353, 2014-Ohio-1914, ¶32, quoting State v. Berry, 72 Ohio St.3d 354, 359 (1995)

(citations omitted). “Incompetency must not be equated with mere mental or emotional

instability or even with outright insanity. 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 (1986).




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       {¶38} “‘Even when a defendant is competent at the commencement of his trial, a

trial court must always be alert to circumstances suggesting a change that would render

the accused unable to meet the standards of competence to stand trial.’” State v. Swigart,

11th Dist. Portage No. 1934, 1990 WL 12704, *2 (Feb. 16, 1990), quoting Drope v.

Missouri, 420 U.S. 162, 181 (1975).

       {¶39} The trial court’s initial determination that appellant was competent to stand

trial is supported by competent, credible evidence. The trial court considered Dr. Hart’s

report, which reflects appellant understood the nature of the legal proceedings against

him and was capable of assisting in his own defense. Appellant’s counsel stipulated to

Dr. Hart’s report. Although appellant continually asserted he wanted to represent himself

pro se, “willingness to assist one’s own attorney in one’s defense is not the test for

competency. The proper inquiry is the defendant’s present ability to so assist.” State v.

Halder, 8th Dist. Cuyahoga No. 87974, 2007-Ohio-5940, ¶39, citing Berry, supra, at 362.

Appellant exhibited an understanding of the legal proceedings and his ability to assist his

attorney when he filed several pro se motions and exhibits prior to trial.

       {¶40} The trial court also conducted a comprehensive inquiry of appellant prior to

his waiver of his right to counsel. The trial court engaged in a lengthy colloquy with

appellant. Appellant asserted his innocence and exhibited an understanding of the

charges against him and the possible penalties. Further, appellant was able to represent

himself for a portion of the trial. Standby counsel’s assistance was invoked only after

appellant continually failed to follow the court’s orders, and appellant indicated his inability

to continue to represent himself.




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       {¶41} Even if appellant had failed to take his medication prior to trial, that failure

would not automatically render him incompetent to stand trial. Moreover, the record

reflects that on the date of trial, appellant understood the legal proceedings against him

and was capable of assisting defense counsel.

       {¶42} Appellant’s second potential error is without merit.

       {¶43} The third potential issue states: “Trial Court abused its discretion when it

sentenced the Appellant to the maximum term applicable the offense for which he was

convicted.”

       {¶44} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise

modify a sentence that is appealed under this section or may vacate the sentence and

remand the matter to the sentencing court for resentencing * * * if it clearly and

convincingly finds * * * (a) [t]hat the record does not support the sentencing court’s

findings under division * * * (C)(4) of section 2929.14, or * * * (b) [t]hat the sentence is

otherwise contrary to law.” Id.

       {¶45} “‘A sentence is contrary to law if (1) the sentence falls outside the statutory

range for the particular degree of offense, or (2) the trial court failed to consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing

factors in R.C. 2929.12.’” State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-

7127, ¶18, quoting State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶14

(citations omitted). “‘When a sentence is imposed solely after the consideration of the

factors in R.C. 2929.11 and 2929.12, appellate courts “may vacate or modify any




                                             11
sentence that is not clearly and convincingly contrary to law”’” only if the appellate court

clearly and convincingly finds that the record does not support the sentence. Id. at ¶18,

quoting Price, supra, at ¶14, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, ¶23.

          {¶46} “[I]n sentencing a defendant for a felony, ‘a court is merely required to

“consider” the purposes and principles of sentencing in R.C. 2929.11 and the statutory *

* * factors set forth in R.C. 2929.12.’” State v. Brown, 11th Dist. Lake No. 2014-L-075,

2015-Ohio-2897, ¶34, quoting State v. Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-

3013, ¶44.       “The trial court satisfies its obligation to consider the seriousness and

recidivism factors in R.C. 2929.12 by stating that it considered them.” Id. “‘[T]he trial

court is not obligated * * * to give any particular weight or consideration to any [R.C.

2929.12] sentencing factor.’” State v. Pishner, 11th Dist. Portage No. 2017-P-0004, 2017-

Ohio-8689, ¶20, quoting State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-6255, ¶34 (11th

Dist.).

          {¶47} Here, appellant’s sentence is within the statutory range and is the maximum

sentence for a second-degree felony. See R.C. 2929.14(A)(2). The trial court stated that

it considered the principles of sentencing in R.C. 2929.11 and the statutory factors set

forth in R.C. 2929.12 both at appellant’s sentencing hearing and in its judgment entry of

sentence. The trial court further reviewed appellant’s extensive criminal history, his

history of violence, and the impact of the present offense on the victim. The court also

found appellant’s conduct was more serious than conduct normally constituting the

offense. Accordingly, appellant’s sentence is not contrary to law.

          {¶48} Appellant’s third potential error is without merit.




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      {¶49} After a thorough and independent review of the record, including the

competency evaluation, trial transcript and exhibits, and sentencing transcript, we find no

arguable legal points on the merits of this matter. Counsel’s motion to withdraw is

granted.

      {¶50} The judgment of the Trumbull County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

DIANE V. GRENDELL, J.,

concur.




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