[Cite as State v. Smith, 2011-Ohio-2400.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95505




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   CHARLES SMITH
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-516223

        BEFORE: S. Gallagher, J., Kilbane, A.J., and Jones, J.

        RELEASED AND JOURNALIZED: May 19, 2011
ATTORNEYS FOR APPELLANT

Maureen Connors
Ann S. Vaughn
Connors & Vaughn
6000 Freedom Square Drive
Suite 165
Independence, OH 44131


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Kristin Karkutt
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant Charles Smith appeals the decision of the Cuyahoga

County Court of Common Pleas accepting Smith’s guilty plea and sentencing

him to 17 months on domestic violence and felonious assault charges in Case

No. CR-516223.    Smith argues that the trial court should have held a

competency hearing prior to accepting his guilty plea.   For the following

reasons, we affirm the judgment of the trial court.
      {¶ 2} In a prior appeal, State v. Smith, Cuyahoga App. No. 92649,

2010-Ohio-154 (“Smith I”), this court vacated Smith’s conviction on domestic

violence and felonious assault charges and remanded for the limited purpose

of holding a competency hearing pursuant to R.C. 2945.37. On October 21,

2008, Smith made an oral motion for a referral to the court’s psychiatric clinic

to evaluate his competency to stand trial, to determine his sanity at the time

of the act, to determine the propriety of transferring the case to the mental

health docket, and for a report on the psychiatric factors regarding

disposition. The record did not reflect whether such a report was generated

at the time of Smith I. The Smith I court found that the lack of a hearing on

Smith’s competency rendered the guilty plea invalid. The court remanded

the case to hold the hearing required by R.C. 2945.37, specifically noting that

“Smith’s counsel did not waive the competency hearing or stipulate to a

finding of competency.” Smith, 2010-Ohio-154, at ¶ 11.

      {¶ 3} On remand, the trial court held a pretrial on the record where

Smith stipulated to the November 6, 2008 competency report, that he was

competent to stand trial, and that he was sane at the time of the offense. On

May 24, 2010, Smith pleaded guilty.      We note that in contemplation of a

plea, the trial court agreed to reduce the term of incarceration by one year.

Smith timely appealed the second sentence with the current appeal. Smith’s

sole assignment of error reads as follows: “The trial court erred by failing to
conduct a competency hearing.” That assignment of error is not well taken.

     {¶ 4} Under Ohio law, “a person whose mental condition is such that he

lacks the capacity to understand the nature and object of the proceedings

against him, to consult with counsel, and to assist in preparing his defense

may not be subjected to a trial. The conviction of an accused while he is not

legally competent to stand trial violates due process of law.”      (Internal

citations omitted.) State v. Rubenstein (1987), 40 Ohio App.3d 57, 60, 531

N.E.2d 732.

     {¶ 5} In addition, R.C. 2945.37 provides that if the prosecutor or

defendant raises the issue of competency before trial, the trial court must

conduct a hearing to determine, upon the evidence submitted, whether the

defendant is competent. The court must hold such a hearing “within thirty

days after the issue is raised, unless the defendant has been referred for

evaluation in which case the court shall conduct the hearing within ten days

after the filing of the report of the evaluation.”   R.C. 2945.37(C).    The

competency issue is one that can be waived by the parties. 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.

      {¶ 6} In the current case, the trial court held a pretrial on the record on

May 4, 2010, with Smith and his counsel present, at which Smith and the

prosecutor stipulated to the November 6, 2008 psychiatric report, Smith’s

sanity at the time of the offense, and Smith’s competency to stand trial. The

trial court accepted the stipulations and found the same. We note that at a

subsequent pretrial held on May 24, 2010, Smith referred to the May 4th

pretrial as the competency hearing. The trial court therefore complied with

this court’s mandate in Smith I. Smith’s stipulation nullified the need to

hold a hearing since a hearing is only needed to introduce evidence rebutting

the presumption of competency established in R.C. 2945.37(G).                            By

stipulating, Smith conceded the competency issue, in effect withdrawing any

previously raised issues with his competency. Since his competency was no

longer an issue, a further hearing was not required. Smith’s sole assignment

of error is overruled.

      Judgment 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.




SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, J., CONCUR
