[Cite as State v. Sims, 2013-Ohio-4704.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99495




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           JOSE A. SIMS
                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-565699

        BEFORE: Rocco, J., Celebrezze, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: October 24, 2013
ATTORNEY FOR APPELLANT

Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John Patrick Colan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

         {¶1} Defendant-appellant Jose A. Sims appeals from his convictions after the trial

court found him guilty of murder and felonious assault.

         {¶2} Sims presents two assignments of error, claiming that his behavior at trial

should have prompted the lower court to conduct a hearing regarding his competency, and

asserting that his trial counsel rendered ineffective assistance for failing to request such a

hearing.

         {¶3} Upon a review of the record, this court cannot find either any error on the part

of the trial court or any deficiency on the part of defense counsel. Consequently, Sims’s

assignments of error are overruled, and his convictions are affirmed.

         {¶4} Sims’s convictions result from an incident that occurred on the afternoon of

July 29, 2012. Sims, who suffers from bipolar disorder, arrived at his apartment with his

girlfriend Ciera Matthews to find that his television set had been stolen from his locked

bedroom. Sims immediately suspected that James Joyce, the man with whom he shared

his apartment, had taken the item. The theft triggered Sims’s ire; he began a hunt for

Joyce.

         {¶5} After failing to find Joyce in the building, Sims looked outside to see Joyce

arriving in the area on foot. Another building resident, Katranada Sakatch, accompanied

Joyce. Sims ran outdoors.

         {¶6} Sims confronted Joyce in the parking lot of the convenience store that was

located across the street from the apartment building. Sims punched Joyce, knocked him
to the ground, then began to hit and kick him. After a few minutes, when Joyce lay

unresponsive, Sims left. He returned to Matthews and requested her to drive him away.

       {¶7} The following day, without regaining consciousness, Joyce died from the

injuries he received during Sims’s attack. Sims eventually surrendered to the police.

       {¶8} Sims was indicted in this case on three counts; he was charged with

aggravated murder, murder, and felonious assault. Sims waived his right to a jury trial.

       {¶9} After the presentation of the evidence, including video recordings made of

the incident by store surveillance cameras, the trial court found Sims not guilty of

aggravated murder, but guilty of the other two counts. The state elected at sentencing to

proceed on the charge of murder, and the court sentenced Sims to a prison term of 15

years to life.

       {¶10} Sims presents the following two assignments of error for this court’s review.

              I. The lower court erred and denied the Appellant due process
       of law when it failed to conduct a hearing regarding his competence to
       stand trial.

              II. The Appellant was denied effective assistance of counsel due
       to the failure of counsel to request a competency hearing.

       {¶11} In his first assignment of error, Sims argues that his behavior during the

proceedings in conjunction with his medical history should have prompted the trial court

sua sponte to conduct a hearing on the question of his competency. Sims asserts that the

court’s failure to do so violated his right to due process of law. This court, however,

finds no fault with the trial court’s management of the proceedings.
       {¶12} In Ohio, a defendant is presumed to be competent unless it is demonstrated

by a preponderance of the evidence that he is incapable of understanding the nature and

objective of the proceedings against him or of presently assisting in his defense. State v.

Smith, 8th Dist. Cuyahoga Nos. 96582, 96622, and 96623, 2012-Ohio-261, ¶ 24-26, citing

R.C. 2945.37(G).

       {¶13} R.C. 2945.37(B) allows the trial court, prosecutor, or the defense to raise the

issue of a defendant’s competence to stand trial. In State v. Were, 94 Ohio St.3d 173,

2002-Ohio-481, 761 N.E.2d 591, paragraph one of the syllabus, the Ohio Supreme Court

held that a competency hearing is required if the request is made before trial.

       {¶14} Sims was arraigned in this case on August 27, 2012. Two weeks later, on

September 11, the trial court ordered Sims’s referral to the court psychiatric clinic for an

assessment of his competency and sanity at the time of the act so that “recommendations

regarding disposition” of Sims’s case could be made.

       {¶15} On November 8, 2012, the court called the case for a hearing. The court

was concerned about a report it received from the county jail indicating that Sims had

stopped taking his “Depakote and Zoloft.” Sims explained to the court that the problem

occurred only when he was asleep during disbursement times. Sims asserted that he

continued with his psychiatric medications “every chance” that he had. The trial court

noted it would continue monitoring the situation.

       {¶16} On November 29, 2012, at the final pretrial hearing, the court stated that it

had received the clinic’s evaluation of Sims, authored by “Karl E. Mobbs,” who stated his
opinion “with reasonable medical certainty that Mr. Sims is capable of understanding the

nature and objectives of the charges against him, and he is presently capable of assisting

counsel in his defense, therefore he was found to be competent.”

       {¶17} The report went on to reveal that, although Sims had “a severe mental

illness” of “major depressive disorder, single episode, severe with psychotic features,” the

illness did not “interfere with his ability to know the wrongfulness of his acts on the day

of the alleged offense,” therefore, the report concluded Sims was sane at the time of the

offense. Sims’s defense attorneys stipulated to these findings.

       {¶18} After stating these findings, the trial court addressed Sims personally to

inquire about his rejection of the state’s offer of a plea bargain. Sims responded to the

court’s questions and comments appropriately.

       {¶19} One of his attorneys then informed the trial court that he had discussed the

matter with Sims “numerous times,” Sims “understands the plea” offer, but Sims did not

want to accept it. Counsel further stated that he had “gone over” the state’s evidence

with Sims, so Sims was aware of “all the facts.”

       {¶20} When the trial court asked Sims if he was “thinking clearly today,” Sims

answered, “Yes. I’m not angry or depressed.” Sims also indicated that he understood

the subject of the discussion, and had no unanswered questions. Sims told the court that

he knew the “legal” consequence of accepting the state’s offer, i.e., that he “would not get

out of jail until after 17 years.” Sims further stated that for him, personally, “It means

when I get out my son will be 19 and my daughter will be 18.”
       {¶21} He declined to agree to the offer, in spite of his awareness that, “If I’m

found guilty I have — I will go to jail. If I’m not found guilty, I will be released.” He

stated he understood what the term “life” in prison meant: “It — it means after 20 years

I can go before the parole board but I don’t necessarily have to be released.” Sims also

told the court that he knew, “according to his lawyer, if I get found guilty on a felonious

assault, I could — I will be found guilty on murder statute B.” Sims stated that, even so,

he “can’t take that plea.”

       {¶22} When the record fails to reveal sufficient indicia of incompetence, a failure

to hold a competency hearing during trial is deemed to be harmless error. State v. Bock,

28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). “The right to a hearing rises to the

level of a constitutional guarantee [only] where the record contains ‘sufficient indicia of

incompetence,’ such that an inquiry * * * is necessary to ensure the defendant’s right to a

fair trial.” State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶

156, quoting State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995).

       {¶23} This court stated similarly in State v. Smith, 8th Dist. Cuyahoga No. 95505,

2011-Ohio-2400, ¶ 5:

              A hearing is not required in all situations, only those where the
       competency issue is raised and maintained. We acknowledge that once the
       issue is raised, there may be situations where the defendant exhibits
       outward signs indicating the lack of competency that may necessitate a
       hearing regardless of any stipulation. That issue is not present in the
       current case. The record does not contain any evidence that Smith
       exhibited any such signs.

(Emphasis added.)
             {¶24} In this case, the record reflects that Sims’s behavior caused the trial court to

      interrupt the proceedings on only one occasion. This occurred during the testimony of

      the physician who had treated the victim after his appearance at the surgical intensive care

      unit. The trial court stated:

             The record should reflect that during the course of the doctor’s testimony, the
      Court noticed that Mr. Sims began to — his body began to shake and his legs — I don’t
      know if I would consider him agitated. He didn’t look upset, but I stopped the
      proceedings because I was concerned that he may need to be — I don’t know. I was
      concerned that there may be a safety issue, quite frankly, and so the deputies took him
      into the back. They said that he was on the floor of the holding cell and that he was
      crying uncontrollably.

             They felt it would be in his best interest to take him down and to have him seen by
      the psych unit. * * *

             The record should reflect that my records indicate in the weekly reports that I
      receive that Mr. Sims has been completely med-compliant since being in the county jail,
      or at least for a number of months. He’s been medication-compliant. He does have
      major depressive disorder with psychotic features.

             So I’m going to let them evaluate him. * * *

(Emphasis added.)

             {¶25} The court opined that “[m]aybe he just needs someone to calm him down.”

      Sims’s defense counsel agreed with the trial court’s “representation” of the situation.

             {¶26} When Sims returned to the courtroom, the trial court addressed him to

      explain that it had been “concerned about” him, and that the medical evaluation had

      deemed him “okay to come back up to the courtroom.” The trial court encouraged Sims

      to request “a break” in the proceedings should he need one. Sims indicated he would.
       {¶27} From the foregoing, there is nothing to suggest that Sims was unable to

assist in his own defense. Rather, the foregoing suggests that Sims had an issue simply

with his impulse control. That conclusion is supported by the medical records of their

client that Sims’s attorneys introduced into evidence at trial.

       {¶28} Sims’s records demonstrate Sims had lengthy discussions with his therapist.

 His therapist expressed no concern over Sims’s ability to reason. Sims’s therapist’s

concerns for his patient were limited to Sims’s continued medication management and to

Sims’s coping mechanisms for his depressive episodes and his explosive anger. As the

court observed in State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986):

              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.

       {¶29} The record reflects that Sims “always addressed the court in an appropriate

manner and demonstrated a complete understanding of the proceedings.”              State v.

Fhiaras, 8th Dist. Cuyahoga No. 97740, 2012-Ohio-3815, ¶ 22, citing State v. Smith, 8th

Dist. Cuyahoga No. 95505, 2011-Ohio-2400. Sims’s trial counsel, moreover, did not

indicate that they were experiencing any difficulties in communicating with him.

       {¶30} Indeed, Sims provided cogent testimony in his own defense. Under the

circumstances presented in this case, the trial court had no reason to conduct a hearing on

the issue of Sims’s competency. State v. Almashni, 8th Dist. Cuyahoga No. 92237,

2010-Ohio-898, ¶ 14.

       {¶31} Consequently, Sims’s first assignment of error is overruled.
       {¶32} Sims argues in his second assignment of error, for largely the same reasons

asserted in his first, that his defense attorneys rendered ineffective assistance by failing to

request a competency hearing for him during trial. For largely the same reasons as stated

previously, this argument also fails.

       {¶33} In order to establish ineffective assistance of counsel, a defendant must

demonstrate not only that counsel’s performance fell below an objective standard of

reasonable representation, but also that he was prejudiced by that performance. State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989) paragraph two of the syllabus, citing

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The

defendant establishes prejudice by demonstrating there exists a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland at 694. A court must remain mindful that it must give deference to

counsel’s decisions, because trial tactics and strategies are not to be second-guessed. Id.

       {¶34} The record in this case does not indicate that Sims’s mental health in any

way affected his ability to assist in his own defense. Sims made a logical decision to

reject the state’s plea offer and provided logical testimony in his own defense. Sims

cannot demonstrate, therefore, either that his counsel were ineffective for failing to

request another competency evaluation during trial or that the results of his trial would

have been different had counsel done so. State v. Grasso, 8th Dist. Cuyahoga No.

98813, 2013-Ohio-1894, ¶ 72.

       {¶35} Accordingly, Sims’s second assignment of error also is overruled.
      {¶36} Sims’s convictions are affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_________________________________
KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
