[Cite as State v. Holman, 2014-Ohio-3908.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 100468



                                     STATE OF OHIO

                                                   PLAINTIFF-APPELLEE

                                             vs.

                                  JASON E. HOLMAN
                                                   DEFENDANT-APPELLANT




                              JUDGMENT:
                  AFFIRMED IN PART, REVERSED IN PART,
                   AND REMANDED FOR RESENTENCING


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CR-10-537311

        BEFORE: Stewart, J., Rocco, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                  September 11, 2014
ATTORNEY FOR APPELLANT

Brian R. McGraw
1370 Ontario Street, Suite 2000
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mary Weston
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} The trial court found defendant-appellant Jason Holman guilty of breaking

and entering, and burglary in two cases.      The court ordered a suspended sentence and

ordered Holman to comply with the terms of his probation.             In October 2012 after a

probation revocation hearing, the court determined that Holman had violated the terms of

his probation, and sentenced him to serve 36 months for the burglary conviction and 12

months for the breaking and entering conviction and ran the sentences consecutively.

On appeal in three assignments of error, Holman argues that the court abused its

discretion by failing to order a competency assessment, that his trial counsel was

ineffective for failing to request a competency assessment, and that the court failed to

make the proper findings before imposing consecutive sentences.           For the reasons that

follow, we affirm Holman’s convictions but remand for resentencing.

       {¶2} In April 2010 in CR-10-535678, Holman pleaded guilty to fifth-degree

breaking and entering in violation of R.C. 2911.13(A). Prior to sentencing, Holman was

arrested on new charges in CR-10-537311.                 At the sentencing hearing for

CR-10-535678, Holman orally moved the court to withdraw his guilty plea. After the

court discussed the motion and circumstances of the case with Holman and his counsel,

the court granted the motion and Holman was referred to the court psychiatric clinic to

determine his eligibility for transfer to the mental health docket.
          {¶3} In CR-10-537311, Holman was indicted on one count of burglary, a

second-degree felony, with notice of prior conviction and repeat violent offender

specifications.    He was also charged with fifth-degree theft and fifth-degree vandalism.

          {¶4} In July 2010, both cases were transferred to the mental health docket.

Holman was appointed a defense attorney experienced in representing defendants with

mental health issues.      On July 27, 2010, Holman pleaded guilty in both cases: in

CR-10-535678 to breaking and entering as indicted, and in CR-10-537311 to third-degree

burglary, a lesser offense as amended, with the remaining theft and vandalism counts

nolled.     Holman was referred to the court psychiatric clinic for a mitigation of penalty

report and sentencing was scheduled for August 2010.      The trial court sentenced Holman

to three years community control sanctions including supervision by the adult probation

department with a period of time at an inpatient substance abuse treatment facility.

          {¶5} Holman appeared in court for a probation revocation hearing in May 2012.

Holman’s probation officer alleged that Holman failed to complete a court ordered drug

rehabilitation program.     He also missed appointments with his doctor and his case

manager. There was some discussion by Holman’s attorney that Holman had stopped

taking his medication that might have been the cause of his failure to comply with the

terms of his probation. The court extended his probation but in October 2012, Holman

was again before the court for violating the terms of his probation. Holman’s probation

officer this time asserted that he had reason to believe that Holman was at times using
illegal drugs and that his mental health was deteriorating. Again, the court continued

Holman’s probation and ordered him additional treatment at an inpatient facility.

      {¶6} Two weeks later, Holman returned to the courtroom again for violating the

terms of his probation. His probation officer told the court that Holman had threatened

to kill various people and himself. Holman’s counsel advised the court that Holman was

bipolar, had a low IQ, and did not appear to understand that the termination of his

probation could result in a prison sentence. The court found that Holman was unwilling

to comply with the terms of his probation and sentenced him to 36 months for the

burglary and 12 months for breaking and entering, to run consecutive to each other.

      {¶7} In Holman’s first assigned error he argues that the trial court abused its

discretion by not ordering a competency assessment.         Holman argues that he was

“confused” by his sentence and lacked a clear understanding of the length of time he

potentially faced once his sentence was imposed.    Holman also asks this court to equate

his low IQ, mental health, and substance abuse issues with an obvious need to have his

competency assessed. Such a finding, however, is not supported by law.

      {¶8} “The issue of a defendant’s competency to participate in probation revocation

proceedings may be raised by the court or defendant, and the decision to hold a

competency hearing must be made on a case-by-case basis in the exercise of the sound

discretion of the trial court.” State v. Qualls, 50 Ohio App.3d 56, 552 N.E.2d 957 (10th

Dist. 1988), paragraph one of syllabus.   In a probation hearing, a defendant has a due

process right to a competency hearing when there is a substantial basis for the suggestion
that appellant is incompetent. State v. Bell, 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th

Dist. 1990), citing Qualls at 58.

       {¶9} Incompetency is defined as a defendant’s inability to understand the nature

and objective of the proceedings or presently assist in his defense. State v. Mangus, 7th

Dist. Columbiana No. 07 CO 36, 2008-Ohio-6210,  66.        Incompetency is not equated

with mere mental or emotional instability or even with outright insanity. State v. Were,

118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263,  47. A defendant may be

emotionally disturbed and still be capable of understanding the charges against him and of

assisting his counsel.   Mangus, citing State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d

1016 (1986).

       {¶10} In State v. Brank, 5th Dist. Tuscarawas No. 2006P090053, 2007-Ohio-919,

the trial court placed the appellant under community control sanctions following a

conviction for gross sexual imposition. Under the terms of his community control, the

appellant was not to have any contact with children.   The state moved for revocation of

the appellant’s community control following an incident where the appellant tried to take

an unaccompanied child on a walk.        After a hearing, the court determined that the

appellant had violated his probation and revoked the appellant’s community control

sanction.   On appeal, the appellant claimed that the trial court abused its discretion by

not ordering a competency evaluation after his conduct in jail and at his probation

revocation hearing suggested that he suffered from mental health issues. While in jail,

the appellant appeared disoriented and claimed to not know his own name.      Id. at  24.
At his probation revocation hearing, he told the court he did not understand the charges

against him and that he was afraid. Id. at  34-40.       The court specifically concluded

that the appellant’s competency was not at issue pursuant to R.C. 2945 where the

“testimony presented by the [s]tate was so clear and so disconnected from appellant’s

ability to assist his counsel in defending him.” The Fifth District upheld this judgment

finding that the trial court did not abuse its discretion by failing to hold a competency

hearing. Id. at  45.

       {¶11} Likewise in Qualls, the appellant argued that the trial court erred by

revoking his probation where there existed substantial evidence casting doubt on his

competency.    Similar to the case at bar, the appellant in Qualls did not raise the issue of

his competency to participate in, and understand, the proceedings and their result.       He

argued that the court should have ordered a competency evaluation because it was

obvious that he suffered from mental illness. Also like Holman, he argued that his

probation violations were a result of his mental illness. Id. at 58.   The reviewing court

rejected the argument that the court should have ordered a competency evaluation and

subsequent hearing.     The trial court had no duty to perform a competency evaluation

where it was clear from the record that at the probation hearing the appellant was apprised

of the grounds upon which his probation was being revoked, had the assistance of

counsel, and the record clearly demonstrated that the appellant was able to follow the

dialogue during the hearing and was cognizant of the reasons for his arrest.              Id.

Additionally the court stated, “[w]hen requested, a competency hearing may be held in the
sound discretion of the trial court, [appellant] did not request a competency hearing and

the record reflects no evidence suggesting that it was not within the sound discretion of

the trial court not to conduct one.” Id.

       {¶12} While it is clear from the record that Holman suffers from mental health and

substance abuse issues, neither Holman’s attorney, probation officer nor the court raised

the issue of competency and requested that an evaluation and competency hearing be

held. Holman had the wherewithal to request that the court withdraw his initial guilty

plea, discuss his case with his appointed counsel, inform the court regarding his

medications, and answer the court’s questions during the plea colloquy.     The trial court

properly acknowledged Holman’s mental health issues by appointing trial counsel

experienced in representing clients with mental health issues and also by placing

Holman’s case on the mental health docket.    No further action by the court was required.

 We overrule Holman’s first assigned error.

       {¶13} Holman’s second assignment of error is likewise without merit. He argues

that his counsel was ineffective because his counsel failed to raise the issue of

competency at his final probation revocation hearing.

       {¶14} In order to prevail on an ineffective assistance of counsel claim, a defendant

must show (1) his counsel was deficient in any aspect of his representation, and (2) the

defendant must show that the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
       {¶15} Holman has failed to demonstrate how his counsel’s failure to request a

competency assessment was deficient and what prejudice he suffered as a result.

Holman argues that his counsel was in the position to closely observe him, and that he

should have been aware that Holman was suffering new symptoms of his mental illness

that may have been causing him to violate his probation by threatening to harm himself

and others. As discussed when addressing Holman’s first assignment of error, having

mental illness does not automatically trigger questioning one’s competency.

       {¶16} Holman also fails to demonstrate that, had his counsel raised the issue of

competency, it would have altered the outcome of his probation revocation hearing.       On

several occasions the trial court continued Holman’s probation and ordered additional

mental health treatment. The court was told that Holman was not taking his medication

and was suspected of using illegal drugs. Based on all the information the court had

before it and Holman’s history with violating the terms of his probation, we are not

persuaded that the trial court would have ordered a competency assessment had counsel

requested as much.    We therefore overrule this second assignment of error.

       {¶17} In his third and final assigned error, Holman argues that the court failed to

make the proper findings before imposing consecutive sentences for his burglary and

breaking and entering convictions.

       {¶18} Under R.C. 2929.14(C)(4), a trial court may impose consecutive multiple

prison terms for convictions on multiple offenses where the court makes the necessary

statutory findings. This court has interpreted the statute to require that the trial court to
make separate and distinct findings apart from any findings relating to the purposes and

goals of criminal sentencing.         State v. Nia, 8th Dist. Cuyahoga No. 99387,

2014-Ohio-2527,  13.     See also State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453.

       {¶19} R.C. 2929.14(C)(4) states:

       If multiple prison terms are imposed on an offender for convictions of
       multiple offenses, the court may require the offender to serve the prison
       terms consecutively if the court finds that the consecutive service is
       necessary to protect the public from future crime or to punish the offender
       and that consecutive sentences are not disproportionate to the seriousness of
       the offender’s conduct and to the danger the offender poses to the public,
       and if the court also finds any of the following:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term for any of the offenses committed as part of any of the courses
       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the offender.

       {¶20}   A review of the record demonstrates that the trial court failed to make all

the necessary findings required by the statute.   The court stated:

       COURT:        You’ve indicated you want your sentence, and you can have
                     it. The Court’s going to sentence you to 36 months, which is
                     the maximum on the felony of the third degree; and that’s
                     consecutive to a one-year sentence on the felony of the fifth
                      degree. That’s the maximum I can sentence you to in order to
                      protect the public against these potential threats.

The sentencing transcript reflects that the court found that the public needed to be

protected, fulfilling the first requirement of the statute.      The third requirement is

satisfied because Holman was under community control sanction at the time he was

sentenced.     However, the court did not make the second required finding under the

statute.   We therefore vacate the sentence and remand the case for the trial court to

consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and if

so, to make the required findings on the record and incorporate those findings into the

court’s sentencing entry.      See State v. Bonnell, Slip Opinion No. 2014-Ohio-3177.



       {¶21}     Conviction affirmed; cause reversed in part and remanded to the trial court

for resentencing consistent with this opinion.

       It is ordered that appellant and appellee share the 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 Cuyahoga

County Court of Common Pleas 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 resentencing.

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

the Rules of Appellate Procedure.
__________________________________________
MELODY J. STEWART, JUDGE

KENNETH A. ROCCO, P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS
IN JUDGMENT ONLY
