[Cite as State v. Harian, 2018-Ohio-2051.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                      Nos. 106209 and 106210




                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                       CLARENCE K. HARIAN

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED




                                     Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                          Case Nos. CR-16-606599-A and CR-16-607603-A

        BEFORE: Celebrezze, J., Stewart, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: May 24, 2018
ATTORNEY FOR APPELLANT

Jerome M. Emoff
Dworken & Bernstein Co., L.P.A.
1468 West Ninth Street, Suite 135
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Janna R. Steinruck
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Clarence Harian (“appellant”), brings this appeal challenging

guilty pleas he entered in two criminal cases.   Specifically, appellant argues that the trial court

failed to comply with R.C. 2945.37(B) by not conducting a competency hearing and that his

guilty pleas were not voluntarily entered.   After a thorough review of the record and law, this

court affirms.

                              I. Factual and Procedural History

       {¶2} The instant appeal arose from guilty pleas that appellant entered in two criminal

cases on May 22, 2017. First, in Cuyahoga C.P. No. CR-16-606599-A, appellant pled guilty to

an amended Count 2, robbery, a second-degree felony in violation of R.C. 2911.02(A)(1), with

notice of prior conviction and repeat violent offender specifications; Count 5, petty theft, a

first-degree misdemeanor in violation of R.C. 2913.02(A)(1); and Counts 6 and 7, aggravated
menacing, first-degree misdemeanors in violation of R.C. 2903.21(A). Counts 1, 3, and 4 were

nolled.

          {¶3} Second, in Cuyahoga C.P. No. CR-16-607603-A, appellant pled guilty to an

amended Count 2, robbery, a second-degree felony in violation of R.C. 2911.02(A)(1), with

notice of prior conviction and repeat violent offender specifications; an amended Count 5,

abduction, a third-degree felony in violation of R.C. 2905.02(A)(2); and Count 7, having

weapons while under disability, a third-degree felony in violation of R.C. 2923.13(A)(2).

Counts 1, 3, 4, and 6 were nolled.

          {¶4} The trial court held a sentencing hearing on July 11, 2017, during which it sentenced

appellant in both criminal cases. In CR-16-606599-A, the trial court sentenced appellant to a

prison term of four years: four years on Count 2, six months on Count 5, six months on Count

6, and six months on Count 7.        The trial court ordered the counts to run concurrently to one

another. In CR-16-607603-A, the trial court sentenced appellant to a prison term of four years:

four years on Count 2, one year on Count 5, and one year on Count 7. The trial court ordered

the counts to run concurrently to one another.

          {¶5} The trial court ordered appellant to serve his four-year prison sentence in

CR-16-607603-A consecutively with his four-year sentence in CR-16-606599-A for an aggregate

prison term of eight years.       The trial court issued a nunc pro tunc sentencing entry in

CR-16-607603-A on July 20, 2017.

          {¶6} On September 9, 2017, appellant filed the instant appeals challenging his

convictions. He assigns two errors for review:

          I. The trial court erred in failing to comply with the mandatory requirements of
          R.C. 2945.37(B).
       II. The trial court erred in failing to comply with the requirements of Crim.R.
       11(C)(2)(a) & (b).

On October 26, 2017, this court consolidated appellant’s appeals.

                                      II. Law and Analysis

                                         A. Competency

       {¶7} In his first assignment of error, appellant argues that the trial court failed to comply

with the mandatory requirements of R.C. 2945.37(B) by not conducting a competency hearing

after referring him for a competency evaluation during pretrial proceedings.

       {¶8} “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). A defendant is “incompetent” if he or she “is incapable of understanding

the nature and objective of the proceedings against [him or her] or of assisting in [his or her]

defense.” Id. at 360.

       {¶9} If a defendant’s competency to stand trial “is raised before the trial has commenced,

the court shall hold a hearing on the issue.” (Emphasis added.) R.C. 2945.37(B). Thus,

“where the issue of the defendant’s competency to stand trial is raised prior to trial, a competency

hearing is mandatory.” State v. Bock, 28 Ohio St.3d 108, 109, 502 N.E.2d 1016 (1986).

       {¶10} In this case, it is undisputed that the issue of appellant’s competency was raised

prior to trial, and that the trial court did not hold a competency hearing as required by R.C.

2945.37(B). The state acknowledges that the trial court erred by failing to hold a competency

hearing before accepting appellant’s guilty pleas. The state argues, however, that the trial

court’s error was harmless.

       {¶11} The Ohio Supreme Court has held that “the failure to hold a mandatory
competency hearing is a harmless error where the record fails to reveal sufficient indicia of

incompetency.” Bock at 110. In this case, the state argues that the record fails to reveal

sufficient indicia of incompetency. The state asserts that the only indicia of incompetency in

the record was appellant’s assertion that he has been diagnosed with paranoid schizophrenia.

       {¶12} The state contends that the record reflects that appellant was, in fact, competent to

stand trial and that he understood the nature of the proceedings, the charges against him, and the

potential penalties he faced for those charges. In support of its argument, the state emphasizes

that appellant requested new counsel, presented an argument in support of his request, and

inquired about the basis for the firearm specification with which he was charged. The state

argues that appellant’s conduct during pretrial proceedings “indicates that [a]ppellant knew and

understood what he was being charged with and [the] ramifications.” Appellee’s brief at 6.

       {¶13} Appellant, on the other hand, argues that the trial court’s failure to hold a

competency hearing was not harmless error because the record reveals sufficient indicia of

incompetency. In support of his argument, appellant emphasizes that CR-16-606599-A was

originally assigned to the mental health docket, the trial court referred him to the court

psychiatric clinic for a competency evaluation, and that he suffered a “mental breakdown” that

caused him to relapse after being sober for almost one year. (Tr. 56-57.)

       {¶14} After reviewing the record, we find nothing suggesting that appellant was

incompetent to stand trial or enter into a plea.    Therefore, any error regarding the trial court’s

failure to hold a competency hearing is harmless.

       {¶15} The docket in this case contains no reference to appellant’s competency except for

the July 6, 2016 journal entry in CR-16-606599-A referring him for a psychological evaluation.

However, the trial court discussed the court psychiatric clinic’s report during the January 6, 2017
pretrial hearing.      The trial court explained that the report was seven pages long and concluded

that appellant was “just fine[.]” (Tr. 6.) The trial court stated that although appellant’s case

had initially been assigned to the mental health docket, appellant was found to be ineligible for

the mental health docket.1

          {¶16} Appellant inquired as to why he was found to be ineligible for the mental health

docket.      The trial court explained, presumably referencing the findings set forth in the court

psychiatric clinic’s report, “I understand that you can demonstrate that you are able to assist with

your attorney, that you understand what is going on here and, therefore, they do not find that you

are eligible for mental health court.” (Tr. 5.) Appellant asserted that he is always on the

mental health docket and that he has been diagnosed with paranoid schizophrenia. (Tr. 5-6.)

The trial court stated that the clinic diagnosed appellant with “cocaine use disorder severe” and

explained that every disorder or diagnosis does not make a defendant eligible for the mental

health docket. (Tr. 5-6.) The trial court further explained that the clinic “thought [appellant

was] fine. * * * This report is seven pages long, and they will tell you in detail why they felt that

you were just fine[.]” (Tr. 6.)

          {¶17} Finally, the trial court assigned new counsel to represent appellant and stated that it

would not have a problem referring appellant to the court psychiatric clinic for another evaluation

“if [appellant’s] new counsel believes that [he] should be rediagnosed[.]” (Tr. 6.)

          {¶18} Neither appellant nor his new attorney raised the issue of appellant’s competency

during the change of plea hearing.              Furthermore, there is no indication in the record that

appellant’s new counsel requested that appellant be referred back to the court psychiatric clinic

for further evaluation. Had appellant’s new counsel believed that appellant was incompetent or


1
    CR-16-606599-A was assigned to the mental health docket during appellant’s June 3, 2016 arraignment.
had some reason to question whether appellant was, in fact, competent to proceed, counsel surely

would have raised the issue before the trial court proceeded with the change of plea hearing.

See State v. McNeir, 8th Dist. Cuyahoga No. 105417, 2018-Ohio-91, ¶ 27, citing State v. Smith,

89 Ohio St.3d 323, 330, 731 N.E.2d 645 (2000).

         {¶19} Appellant’s assertions during the January 6, 2017 pretrial hearing do not manifest a

level of incompetency. In support of his request for new counsel, appellant asserted, “right now

me and [counsel] did not see eye-to-eye. We have a conflict of interest, so I need — I’d like to

have another lawyer.”2          (Tr. 4.)    Appellant further explained that he believed there was a

conflict of interest because counsel had previously told him that the state had not offered a plea,

but counsel asserted during the pretrial hearing that there have been offers made by the state.

Appellant also inquired about the basis for the firearm specification with which he was charged:

“[h]ow can I be charged with a gun if there wasn’t no gun?” (Tr. 10.)

         {¶20} Based on the foregoing analysis, we find that there was a lack of sufficient indicia

of incompetency in the record. Accordingly, the trial court’s failure to hold a competency

hearing as required by R.C. 2945.37(B) was harmless error. Appellant’s first assignment of

error is overruled.

                                                  B. Guilty Plea

         {¶21} In his second assignment of error, appellant argues that his guilty plea was not

voluntarily entered because the trial court failed to comply with Crim.R. 11(C)(2)(a) and (b) in

advising appellant of the penalties he faced as a result of pleading guilty.

         {¶22} Before accepting a guilty plea, a trial court is bound by the requirements of Crim.R.


2
   Although the trial court referenced a written request for new counsel filed by appellant, this document is not in the
trial court’s docket or the record before this court.
11(C)(2).     State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 27.

Crim.R. 11(C)(2)(a) requires a trial court to inform a criminal defendant of the maximum penalty

for the offense to which he is pleading guilty.

          {¶23} Advising a defendant about the maximum sentence has been determined to be a

nonconstitutional right.      State v. Owens, 8th Dist. Cuyahoga Nos. 100398 and 100399,

2014-Ohio-2275, ¶ 7, citing State v. McKissic, 8th Dist. Cuyahoga Nos. 92332 and 92333,

2010-Ohio-62, ¶ 13. Substantial compliance with Crim.R. 11 is sufficient when advising a

defendant about nonconstitutional rights. Clark at ¶ 30. “Substantial compliance means that

under the totality of the circumstances the defendant subjectively understands the implications of

his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990).

          {¶24} In this case, appellant argues that the trial court failed to sufficiently advise him of

the effect of pleading guilty to the notice of prior conviction specifications.    He appears to argue

that he did not fully understand that by pleading guilty, he would be sent to prison. Appellant’s

argument is entirely unsupported by the record.

          {¶25} During the change of plea hearing, the trial court stated that by pleading guilty in

CR-16-606599-A to robbery, appellant faced a possible sentence of two to eight years in prison.

(Tr. 30.) The prosecutor advised the trial court that the robbery count contained a notice of

prior conviction specification. Thereafter, the trial court explained, “[y]ou have 2 specifications

on count 2 of this indictment, Mr. Harian. One is a notice of prior conviction and the other is a

repeat violent offender. And just so I’m clear, a notice of prior conviction, that means that this

is mandatory time. * * * It looks like it requires the imposition of a prison term.” (Tr. 31.)

Defense counsel asserted that the prison term was “non-probationable” but not mandatory. (Tr.
32.) The trial court explained, “[n]on-probationable. So it requires a prison term, but the

prison term doesn’t have to be a mandatory term.”            (Tr. 32.)   Thereafter, the following

exchange took place between appellant and the trial court:

       THE COURT: Do you understand that?

       [APPELLANT]:        Well —

       THE COURT: It means that you’re going to prison. That’s what it means.

       [APPELLANT]:        Yes, I understand.

(Tr. 32.)   The trial court further advised appellant that the notice of prior conviction

specification means that he “will get prison time. You can’t get probation. And I don’t think

you were looking for probation on these, because they’re both serious charges.” (Tr. 33.) The

trial court also advised appellant that by pleading guilty in CR-16-607603-A to robbery with a

notice of prior conviction specification, appellant was required to go to prison. (Tr. 34.)

       The mere fact that the court did not specifically say “You are ineligible for

       probation” or “This offense requires a mandatory term of prison” will not be fatal

       unless the record clearly indicates that the defendant was unaware that he would

       be sent to prison upon a plea of guilty and he was prejudiced by that fact. The

       test is whether the plea would not have otherwise been made. Nero, 56 Ohio

       St.3d at 108, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163.

State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio-1796, ¶ 11.

       {¶26} Here, the record reflects that appellant was aware that by pleading guilty, he would

be sentenced to prison. Defense counsel acknowledged during the sentencing hearing that the

robbery counts to which appellant pled guilty were nonprobationable due to the underlying notice

of prior conviction specifications. Knowing that the robbery offenses were nonprobationable
and that he was “going to prison,” appellant knowingly, intelligently, and voluntarily pled guilty.

 Accordingly, appellant’s second assignment of error is overruled.

                                         III. Conclusion

       {¶27} After thoroughly reviewing the record, we find that the trial court’s failure to hold a

competency hearing was harmless error and that appellant knowingly, intelligently, and

voluntarily entered his guilty pleas.

       {¶28} Judgment affirmed.

       It is ordered that appellee recover of 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 convictions 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.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR
