[Cite as State v. Alvarado, 2014-Ohio-5374.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ROSS COUNTY

STATE OF OHIO,                        :    Case No. 14CA3423
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
WALTER G. ALVARADO,                   :
                                      :    RELEASED: 12/02/2014
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Timothy Young, State Public Defender, and Peter Galyardt, Assistant State Public
Defender, Columbus, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Cynthia G. Schumaker,
Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Walter Alvarado, who appeals his convictions for felonious assault and

possession of a deadly weapon while under detention, contends that the trial court

abused its discretion by denying his request for a third competency evaluation.

Specifically, he argues that the trial court failed to consider the relevant factors identified

by the United States Supreme Court in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896,

43 L.Ed.2d 103 (1975). However, the record suggests that the court considered all the

evidence presented by defense counsel. The court recounted in its entry that the

previous reports found Alvarado competent and also considered defense counsel’s

opinion that Alvarado was exhibiting signs of extreme paranoia and delusional thinking,

but determined that his untrained evaluation alone was insufficient to require a third
Ross App. No. 14CA3423                                                                    2

evaluation. Nothing in the court’s logic is unreasonable, arbitrary or unconscionable, so

we reject Alvarado’s argument.

                                        I. FACTS

       {¶2}   The Ross County Grand Jury returned an indictment charging Alvarado

with one count of felonious assault and one count of possession of a deadly weapon.

After entering a plea of not guilty defense counsel filed a motion suggesting that

Alvarado was not competent and requested a competency evaluation. The trial court

granted him leave to file a plea of not guilty by reason of insanity and also ordered a

competency evaluation pursuant to R.C. 2945.37 and 2945.39. After the first evaluation

defense counsel requested a second evaluation. Both reports determined that Alvarado

was competent a finding that the parties stipulated to. The trial court held a hearing

pursuant to R.C. 2945.37 and based on the reports and the stipulation the court found

Alvarado competent to stand trial.

       {¶3}   Prior to trial defense counsel filed a “renewed suggestion of

incompetence” and requested a third competency evaluation for Alvarado under R.C

2945.371. In the attached memorandum in support defense counsel stated that

although he had previously stipulated to Alvarado’s competence, he subsequently met

with Alvarado and in his opinion Alvarado was “exhibiting signs of extreme paranoia and

delusional thinking * * *.” Citing State v. Johnson, 9th Dist. Summit No. 25620, 2011-

Ohio-6417, the trial court found defense counsel had provided no evidence other than

his “untrained evaluation,” and denied Alvarado’s request for a third competency

evaluation. Thereafter, Alvarado pleaded no contest to both charges, the trial court

found him guilty, and sentenced him accordingly. This appeal followed.
Ross App. No. 14CA3423                                                                        3

                               II. ASSIGNMENT OF ERROR

       {¶4}   Alvarado raises one assignment of error for our review:

       The trial court violated Walter Alvarado’s right to due process and failed to
       exercise any discretion when it denied his request for a third competency
       evaluation.

                                 III. LAW AND ANALYSIS

       {¶5}   In his sole assignment of error Alvarado argues that the trial court erred by

denying his request for a third competency evaluation. Specifically, he claims that the

court failed to consider the relevant factors identified by the United States Supreme

Court in Drope including: 1.) doubts from counsel about the defendant’s competency;

2.) evidence of irrational behavior; 3.) the defendant’s demeanor in court; and 4.) prior

medical opinions relating to competency.

       {¶6}   In a criminal action the defense may raise the issue of a defendant’s

competence to stand trial, and if the issue is raised prior to trial, the court must hold a

hearing on the issue. R.C. 2945.37(B). However, this provision does not require the

court to order an evaluation prior to the hearing. State v. Perotti, 4th Dist. Scioto No.

89CA1845, 1991 WL 87303, *7 (May 15, 1991). Rather, R.C. 2945.371(A) states that if

the defendant raises the issue of competency, the trial court “may order one or more

evaluations of the defendant’s present mental condition * * *.” Accordingly, a

competency evaluation is not required every time the issue of competency is raised by

the defendant. State v. Stahl, 2nd Dist. Greene No. 2004-CA-69, 2005-Ohio-2239, ¶

19. Rather, “[t]he number of evaluations to be ordered ‘is left to the sound discretion of

the trial court.’” In re J.B., 12th Dist. Butler No. CA2004-09-226, 2005-Ohio-7029, ¶ 35,

quoting State v. Duncan, 9th Dist. Medina No. 3117–M, 2001 WL 1044206, *6 (Sept.
Ross App. No. 14CA3423                                                                     4

12, 2001). See also State v. Hix, 38 Ohio St.3d 129, 131, 527 N.E.2d 784 (1988)

(finding the word “may” in the statutory language of former R.C. 2945.39(A)

unambiguously granted a trial court discretion to decide if more than one psychiatric

examination is necessary).

       {¶7}   Thus, we will not reverse a trial court’s decision regarding the number of

competency evaluations ordered absent an abuse of discretion. See Perotti at *7. An

abuse of discretion means more than an error of judgment; it implies that the court’s

decision was “unreasonable, arbitrary or unconscionable.” Stammco, L.L.C. v. United

Tel. Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042, 926 N.E.2d 292, ¶ 32.

       {¶8}   To support his argument that the trial court was required to consider the

factors identified in Drope before ruling on his motion for a third competency evaluation,

Alvarado cites State v. Rubenstein, 40 Ohio App.3d 57, 531 N.E.2d 732 (8th Dist.1987).

The defendant in Rubenstein was challenging the trial court’s decision regarding a

competency hearing, rather than its failure to order a competency evaluation. The court

held that “[a] trial court, in making a determination of whether to hold a sua sponte

hearing concerning the accused’s competence to stand trial, should consider the

following: (1) doubts expressed by counsel as to the defendant's competence; (2)

evidence of irrational behavior; (3) the defendant’s demeanor at trial; and (4) prior

medical opinion relating to competence to stand trial.” Rubenstein at paragraph two of

the syllabus. As we have already noted, the decision to order a competency evaluation

and hold a competency hearing are distinct and controlled by separate statutes.

Nevertheless, appellate courts have applied the factors identified in Rubenstein and

Drope to review a trial court’s decision whether to order a competency evaluation. See
Ross App. No. 14CA3423                                                                      5

State v. Ridley, 6th Dist. Lucas No. L-10-1314, 2013-Ohio-1268, ¶ 20; In re Moyer, 5th

Dist. Licking No. 2005CA00058, 2006-Ohio-85, ¶ 18-22; but see State v. Hart, 12th Dist.

Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 26 (finding appellate courts are not

limited to “very specific criteria,” including evidence of irrational behavior, defiant

demeanor at trial, or counsel’s doubts about defendant’s competency, when reviewing

the basis for a competency evaluation).

       {¶9}   However, there is nothing in the record to suggest that the court failed to

consider all the evidence provided by defense counsel before ruling on his motion for a

third competency evaluation. At a hearing on August 6, 2013, defense counsel

informed the court that Alvarado appeared to be in a different mental state than when

he was first evaluated. Specifically, he stated “it appears that something, in [Alvarado’s]

own words, something is not right in his mind” and Alvarado “feels that forces are

conspiring against him to do him harm.” The state agreed that Alvarado’s mental

condition had “decreased,” and did not oppose the motion. The trial court responded

that it understood “competency is a fluid condition,” but there had been “a very, very

recent evaluation,” and both parties had stipulated to the previous reports which found

Alvarado competent to stand trial. The court decided to defer its decision for two weeks

and invited both counsel to “cite authority which supports the proposition that this Court

can order a third or a fourth or a fifth evaluation based upon additional suggestions of

incompetency.”

       {¶10} Nearly a month later Alvarado filed a “renewed suggestion of

incompetence,” again asking for a third a competency evaluation. The only reason

given by defense counsel in support of his request was that in his opinion Alvarado was
Ross App. No. 14CA3423                                                                       6

“exhibiting signs of extreme paranoia and delusional thinking.” He also attached State

v. Solomon, 59 Ohio St.3d 124, 570 N.E.2d 1118 (1991), “as an example of a trial court

ordering more than two evaluations for a single defendant.”

       {¶11} In its journal entry overruling Alvarado’s request for a third competency

evaluation the court found Solomon inapposite to the facts of the case. Rather, it noted

that Alvarado “has previously been evaluated by two psychologists to determine his

competency,” and both doctors filed reports “in which they opined that the defendant

was presently able to understand the nature and objectives of the legal proceedings

against him and presently able to assist his attorney in his defense despite the fact that

he does not speak English well.” The court also noted that neither psychologist

observed any evidence that Alvarado was exhibiting signs of extreme paranoia and

delusional thinking. In sum, the court found that defense counsel had given “no

evidence other than [his] untrained evaluation of the defendant,” and this alone was

insufficient to order an additional evaluation.

       {¶12} We see nothing in the court’s decision that is unreasonable, arbitrary or

unconscionable. Even if we accept defense counsel’s untrained opinion that Alvarado

was exhibiting signs of paranoia and delusional thinking, the Supreme Court of Ohio

has consistently held “ ‘[i]ncompetency must not be equated with mere mental or

emotional instability or even with outright insanity’ ” and “ ‘[a] defendant may be

emotionally disturbed or even psychotic and still capable of understanding the charges

against him and of assisting his counsel.’ ” State v. Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914, 12 N.E.3d 1112, ¶ 48, quoting State v. Bock, 28 Ohio St.3d 108, 110, 502

N.E.2d 1016 (1986). Moreover, in State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-
Ross App. No. 14CA3423                                                                         7

6404, 858 N.E.2d 1144, the Supreme Court of Ohio held that a trial court did not abuse

its discretion by denying a defendant’s request for a competency evaluation when the

only evidence presented by counsel was his unsupported assertion of the defendant’s

expected diagnosis of “paranoid personality disorder [and] reality contact problems.”

Johnson at ¶ 163-164.

       {¶13} Alvarado also points out that in the first evaluation, Dr. Daniel Davis

opined that given his history of depression, Alvarado’s competency condition could

deteriorate and argues these statements are proof that “his competency could change

over time.” Nevertheless, at the hearing the court acknowledged “competency is a fluid

condition,” and therefore implicitly recognized Alvarado’s argument.

       {¶14} Alvarado further claims that under Drope, 420 U.S. 162, 95 S.Ct. 896, 43

L.Ed.2d 103, three of the four specified factors supported a third competency

evaluation—doubts expressed by counsel about Alvarado’s competence, evidence of

irrational behavior, and his demeanor during the plea and sentencing hearing. Although

all of these factors are relevant to the trial court’s determination, the presence of one of

these factors may be sufficient to support the decision. Id. at 180; In re Andrew W., 5th

Dist. Knox No. 12-CA-24, 2014-Ohio-1576, ¶ 15. Therefore, the fact that three factors

might support one conclusion may be insufficient to overturn a trial court’s decision in

light of the remaining factor.

       {¶15} Moreover, there is no indication that Alvarado engaged in irrational

behavior at the plea and sentencing hearing. Although he advised the court that he was

not “well in my mind,” that it was “very hard to concentrate in the words that you are

saying to me,” and that he had “mental problems,” there was no outburst or other
Ross App. No. 14CA3423                                                                       8

evidence supporting his counsel’s statements of him experiencing hallucinations,

paranoia, or delusional thinking. And the record does not indicate that there was

anything in Alvarado’s demeanor indicating that his mental status had decreased to the

point where a third competency evaluation in less than a year was required. Alvarado

ultimately advised the court during its detailed plea colloquy that he understood his plea

and was doing it voluntarily and intelligently. When applying the abuse-of-discretion

standard, an appellate court is not free to substitute its judgment for that of the trial

court. See State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940 (2001).

Consequently, although we may have reached a different conclusion on the same facts,

we may not substitute our judgment for that reached by the trial court on this matter.

       {¶16} The trial court did not act in an unreasonable, arbitrary, or unconscionable

manner in denying Alvarado’s request for a third competency evaluation. The two

previous competency evaluations established that although Alvarado experienced

depression, he was competent to stand trial, he did not exhibit either irrational behavior

or unusual demeanor at the plea and sentencing hearing, and his trial counsel

conceded at that hearing that he could not find any case authority that required the trial

court to order a third evaluation. The trial court also conducted a detailed plea colloquy

in which it determined that Alvarado voluntarily, knowingly, and intelligently entered a

plea of no contest, and Alvarado received the minimum prison sentence for the crimes.

We overrule Alvarado’s assignment of error.

                                     IV. CONCLUSION

       {¶17} We cannot say the trial court abused its discretion by denying Alvarado’s

request for a third competency evaluation. Nor can we conclude—as Alvarado claims
Ross App. No. 14CA3423                                                                      9

on appeal—that the court failed to exercise its discretion. To the contrary, the record

shows that the court considered the evidence presented by defense counsel and gave

him time to provide additional authority in support for his position. Based on the

competency evaluations, the trial court’s detailed plea colloquy, and the absence of any

evidence to support his trial counsel’s untrained evaluation of his competence, the trial

court’s denial of Alvarado’s request was neither unreasonable, arbitrary, nor

unconscionable. We overrule his assignment of error and affirm the trial court’s

judgment.

                                                                JUDGMENT AFFIRMED.
Ross App. No. 14CA3423                                                                      10



                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
