[Cite as State v. Cole, 2015-Ohio-3793.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

STATE OF OHIO                                    :
                                                 :
        Plaintiff-Appellee                       :   Appellate Case No. 26122
                                                 :
v.                                               :   Trial Court Case No. 2013-CR-1120
                                                 :
BLAKE A. COLE                                    :   (Criminal Appeal from
                                                 :    Common Pleas Court)
        Defendant-Appellant                      :
                                                 :

                                            ...........
                                           OPINION
                          Rendered on the 18th day of September, 2015.
                                            ...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorneys for Plaintiff-Appellee

BRENT E. RAMBO, Atty. Reg. No. 0076969, Flanagan, Lieberman, Hoffman & Swaim,
15 West Fourth Street, Suite 250, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

                                           .............

HALL, J.

        {¶ 1} Blake Cole appeals from his conviction for rape of a child under the age
                                                                                          -2-
of 10. We affirm in part and reverse in part.

                                      I. Background

       {¶ 2} Cole was 19 years old at the time of the offense. He has a rare congenital

condition known as Cockayne Syndrome and is developmentally disabled. After being

indicted, Cole filed a motion for a competency examination as well as a motion to plead

not guilty by reason of insanity.

       {¶ 3} Cole was examined by clinical psychologist Dr. Scott T. Kidd for competency

and his mental condition at the time of the offense. Dr. Kidd concluded that Cole was

competent to stand trial and that he was sane at the time he committed the offense. Dr.

Kidd’s written reports (one concerning mental condition, the other competency) state that

Cole has several health problems. Cole’s primary condition, Cockayne Syndrome, is a

progressive condition that causes the slow deterioration of the kidneys, liver, heart,

nervous system, lungs, and vision. The condition also causes microcephaly.1 Cole has

been diagnosed with attention deficit/hyperactivity disorder, an anxiety disorder, and a

seizure disorder. Dr. Kidd’s report also states that Cole was given an intelligence test. His

score on the test corresponds to an IQ-test score of 57, which the report says is within the

“mild mental retardation range.” But the report notes that the score may not represent

Cole’s true intellectual abilities, because at the beginning of the test Cole appeared tired

and during the test he was distracted by activity outside the test room. He also responded

to questions inconsistently, making an effort on some questions but giving up quickly and

passing on more difficult questions. According to Dr. Kidd’s competency report, Cole was

1
  “Abnormal smallness of the head, a congenital condition associated with incomplete
brain development.” Oxford University Press, Oxford Dictionaries, available at
http://www.oxforddictionaries.com/us/definition/american_english/microcephaly
(accessed September 03, 2015).
                                                                                       -3-
given the Georgia Court Competency Test - 1992 Revision, which is used to assess

understanding of court procedures and pending charges and to assess the ability to

participate in a defense. Out of a possible score of 100, a score of 70 indicates

competence. Cole scored 92.

       {¶ 4} After reviewing Dr. Kidd’s reports, defense counsel requested a second

opinion, which the trial court ordered. Cole was then evaluated by another clinical

psychologist, Dr. Thomas O. Martin. Like Dr. Kidd, Dr. Martin concluded that Cole was

competent to stand trial and was not legally insane at the time of the offense. Dr. Martin

also filed written reports on Cole’s competency to stand trial and his mental condition at

the time of the offense. The competency report states that Dr. Martin gave Cole the

Competence Assessment for Standing Trial for Defendants with Mental Retardation,

which serves the same basic purpose as the competency test given by Dr. Kidd. Out of a

possible score of 50, Cole scored 48.

       {¶ 5} At a competency hearing, defense counsel stipulated that Cole was

competent. The trial court then found him competent, based on the psychologists’

reports. Cole pleaded no contest to the rape charge and was sentenced to prison for 15

years to life.

       {¶ 6} Cole appealed. His appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that counsel

was unable to find any meritorious issue to present for review. We conducted an

independent review of the record and found that the termination entry incorrectly states

that Cole pleaded guilty. So we appointed new appellate counsel to present for review

this and any other meritorious issue. We turn to those issues now.
                                                                                         -4-



                                        II. Analysis

       {¶ 7} Three assignments of error are presented for our review. The first alleges

that the termination entry is incorrect. The second alleges that the trial court erred by

accepting Cole’s no-contest plea. And the third claims ineffective assistance of trial

counsel.

                                 A. The termination entry

       {¶ 8} The first assignment of error contends that the termination entry incorrectly

states that Cole pleaded guilty. The state concedes that Cole pleaded no contest and that

the plea recorded in the termination entry is a clerical error. We agree.

       {¶ 9} Crim.R. 36 provides that clerical mistakes in judgments may be corrected at

any time. A nunc pro tunc entry may be used to correct a judgment by making it reflect

what actually happened. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958

N.E.2d 142, ¶ 20. We remand this case for the trial court to enter a nunc pro tunc entry

that reflects the plea that Cole in fact entered.

       {¶ 10} The first assignment of error is sustained.

                                  B. The no-contest plea

       {¶ 11} “ ‘When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.’ ” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953

N.E.2d 826, ¶ 9, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

In the second assignment of error here, Cole alleges that the trial court erred by accepting
                                                                                            -5-
his no-contest plea, because he did not enter it intelligently. Cole claims, as a general

matter, that because of his disabilities the court should not have taken his plea in the

routine manner that it did. Rather, says Cole, the court should have given attention to his

special needs. Cole also claims that he did not understand the plea-bargaining process.

       {¶ 12} “ ‘In considering whether a guilty plea was entered knowingly, intelligently

and voluntarily, an appellate court examines the totality of the circumstances through a de

novo review of the record to ensure that the trial court complied with constitutional and

procedural safeguards.’ ” State v. Redavide, 2d Dist. Montgomery No. 26070,

2015-Ohio-3056, ¶ 10, quoting State v. Barner, 4th Dist. Meigs No.10CA9,

2012-Ohio-4584, ¶ 7. “Crim.R. 11(C) governs the process that a trial court must use

before accepting a felony plea of guilty or no contest.” State v. Vieney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. By following this rule, a court ensures that the

plea is knowing, intelligent, and voluntary. Redavide at ¶ 12. The rule provides that,

before accepting a guilty or no-contest plea, a court must determine that the defendant

understands that, by pleading, he waives certain constitutional rights. Crim.R.

11(C)(2)(c). The rule also provides that a court must determine that the defendant

understands certain nonconstitutional rights, including “the nature of the charges and of

the maximum penalty involved, and if applicable, that the defendant is not eligible for

probation or for the imposition of community control sanctions,” Crim.R. 11(C)(2)(a), and

“the effect of the plea of guilty or no contest, and that the court, upon acceptance of the

plea, may proceed with judgment and sentence,” Crim.R. 11(C)(2)(b). With respect to

these nonconstitutional rights, a court’s “substantial compliance” with the rule is all that is

necessary. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial
                                                                                            -6-
compliance means that under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving.” (Citation omitted.)

Id.

       {¶ 13} “A criminal defendant may not be tried unless he is competent[,] and he may

not * * * plead guilty unless he does so ‘competently and intelligently.’ ” (Citation omitted.)

Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), quoting

Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The

competency standard for pleading guilty is the same as the standard for standing trial.

State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 57, citing id. at

399. Here, Cole was found competent to stand trial. And, as Cole says in his brief, he is

not arguing that he was incompetent. Therefore Cole was competent to plead no contest.

       {¶ 14} Cole does not contend that the trial court failed to follow any of Crim.R.

11(C)’s express directives. Rather, he claims that because of his disabilities the court

should not have taken his plea in the routine manner that it did but should have given

attention to his special needs. Cole gives no examples, however, of what the trial court

should have done differently. Moreover, Cole scored quite high on two different

competency tests. The test given by Dr. Martin examined “(1) Basic Legal Concepts

(assessing one’s knowledge of the criminal justice process), (2) Skills to Assist Defense

(assessing    one’s   understanding     of   the   client-attorney   relationship),   and   (3)

Understanding Case Events (assessing one’s ability to discuss the facts of the incident in

a coherent manner, as well as one’s understanding of how the facts of the case might

lead to one’s subsequent arrest and charges).” (Martin, Competency to Stand Trial,

Forensic Evaluation, 13). According to Dr. Martin’s report, “[t]he average score of 46
                                                                                        -7-
criminal defendants without mental retardation who were found Competent to Stand Trial

was 45.4.” (Emphasis added.) (Id. at 14). Cole scored 48. We note too that during the plea

colloquy, Cole consistently responded that he understood his rights, and he said that he

wanted to waive them. We cannot say that the trial court should have done something

different.

       {¶ 15} The record does not establish that Cole lacked sufficient understanding

about plea bargaining. Dr. Kidd’s competency report says that Cole was initially unfamiliar

with the process of plea bargaining. The process was explained to him and afterwards

Cole was given a hypothetical case with several plea deals and for each deal was asked

whether the defendant should accept it. According to Dr. Kidd’s report, Cole said that “the

defendant should not accept a deal for the maximum or near-maximum sentence, but

should consider deals for sentences of half or more than half of the maximum sentence,

including probation.” (Kidd, Competency to Stand Trial, Forensic Evaluation, 9). Cole

says that this shows that he believed that a defendant should not plead guilty when the

defendant does not get something in return. Yet, says Cole, he pleaded no contest

without receiving something in return. Cole cites our decision and entry setting aside the

Anders brief in which we noted that there was no plea agreement and that, because the

offense carried a mandatory sentence, “Cole received no apparent tangible benefit.” Cole

contends that his evident understanding of plea bargaining conflicts with his actions and

that this shows that he did not enter his plea intelligently.

       {¶ 16} Both competency reports state that Cole understood the basics of plea

bargaining. According to Dr. Kidd’s report, Cole “demonstrated understanding of plea

bargaining after it was explained to him, and he would be able to collaborate with counsel
                                                                                         -8-
in making a decision about how to plead.” (Kidd, Competency to Stand Trial, Forensic

Evaluation, 10). And the report says that Cole is “capable of understanding various pleas

if explained to him in simple terminology.” (Id.). Similarly, Dr. Martin’s competency report

concludes that Cole’s responses on the competency test that Dr. Martin administered

show that Cole “was able to recognize penalties to which one could be subjected if

convicted on a charge, and that he understood the basic meaning of plea bargaining.”

(Martin, Competency to Stand Trial, Forensic Evaluation, 14). Furthermore, it is not true

that Cole received nothing in return for his plea. As we parenthetically noted in our Anders

decision, Cole received the benefit of “not being subject to a jury trial,” that would have

been in a public courtroom on a charge of forcible anal rape of a 5-year old boy in a

restroom stall at a church.

       {¶ 17} Cole was found competent, the trial court complied with Crim.R. 11(C)(2),

and Cole consistently said that he understood his rights and wanted to waive them. On

similar facts the Fourth District concluded that the guilty plea entered by the defendant in

State v. Smith, 4th Dist. Washington No. 12CA11, 2013-Ohio-232, was entered

knowingly, intelligently, and voluntarily. In that case, after the defendant moved to plead

not guilty by reason of insanity, a competency examination was done, and based on the

examination results, the court found the defendant competent. The defendant pleaded

guilty. On appeal, the defendant contended that he did not enter his plea knowingly,

intelligently, and voluntarily, because he did not understand the consequences of the

plea. He claimed that he was incapable of understanding, in part, because of his mental

disability. The court of appeals found nothing in the record indicating that the plea was

involuntary or showing that the defendant’s waiver of rights was other than knowing and
                                                                                         -9-
intelligent. The appellate court said that the defendant appropriately answered the trial

court’s questions and said that he was willing to waive his constitutional rights and wanted

to plead guilty. The court concluded that “considering the court’s compliance with Crim.R.

11(C)(2) along with [the defendant]’s responses that he understood the court’s

statements concerning his rights, the totality of the circumstances show that he made his

plea knowingly, intelligently and voluntarily.” Smith at ¶ 22.

       {¶ 18} Similarly here, the totality of the circumstances show that Cole entered his

no-contest plea knowingly, intelligently, and voluntarily. The record does not support a

contrary conclusion. The trial court did not err by accepting the plea.

       {¶ 19} The second assignment of error is overruled.

                     C. Claim of ineffective assistance of counsel

       {¶ 20} The third assignment of error claims that defense counsel rendered

ineffective assistance. “Reversal of convictions for ineffective assistance of counsel

requires that the defendant show, first, that counsel’s performance was deficient and,

second, that the deficient performance prejudiced the defense.” Mink, 101 Ohio St.3d

350, 2004-Ohio-1580, 805 N.E.2d 1064, at ¶ 88, citing Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 21} After Dr. Kidd had submitted his reports, a competency hearing was held.

Defense counsel told the trial court that he had reviewed the reports and that he wanted a

second opinion. The trial court agreed and ordered a second evaluation, done by Dr.

Martin. After Dr. Martin submitted his reports, the competency hearing was reconvened.

The trial court asked defense counsel if he had reviewed Dr. Martin’s reports. Counsel

replied that he had and that their conclusions were “actually quite similar” to those in Dr.
                                                                                           -10-
Kidd’s reports. (Competency Tr. 6). The trial court then asked about stipulations:

                THE COURT: And I’m talking now about the competency issue.

         [Counsel], are there any stipulations with respect to the report on Mr. Cole’s

         competency to stand trial.

                [DEFENSE COUNSEL]: Yes, Your Honor. At this point, defense

         would stipulate to the conclusion that he is competent.

                THE COURT: All right. The Court will make a finding, based on Dr.

         Martin’s report of August the 7th of 2013, and also based on the report of Dr.

         Kidd, dated June the 21st of 2013, that Mr. Cole is competent to stand trial.

         The Court finds that he is competent. I think we’re at a point now, with that

         stipulation and that finding, we need to have a trial date if I’m not mistaken.

(Id.).

         {¶ 22} Cole contends that defense counsel should not have stipulated to the fact

that he was competent. This stipulation, says Cole, essentially bars any appeal of the

court’s competency finding. Cole says that counsel should have stipulated only that, if

one of the examining psychologists were to testify, his testimony would be consistent with

the reports. That would allow the trial court to make its own factual finding on

competence, instead of simply accepting the stipulation.

         {¶ 23} Although we agree that the better practice in the above situation would be

for defense counsel to clearly stipulate only that the examining psychologists would testify

consistent with their reports, one could conclude that the above-quoted section of the

competency-hearing transcript, where defense counsel stipulated to “the conclusion that

he is competent,” was an inexact way of stipulating to the psychologists’ conclusions in
                                                                                         -11-
their reports rather than stipulating to the fact of competency. This interpretation is

supported by the trial court’s subsequent finding where it did not simply accept counsel’s

inarticulate stipulation to be a stipulation to competency itself, but made its own finding,

based on those psychologists’ reports, that Cole was competent. Thus, regardless of how

the “stipulation” is viewed, Cole’s competency was independently determined by the court

and Cole cannot show he was prejudiced by counsel’s action which is necessary for a

finding of ineffective assistance. Furthermore, on this record, defense counsel could have

reasonably decided that, in the face of the reports, he could not prove that Cole was

incompetent. Cole does not point to any evidence or present any argument that he was

incompetent.

       {¶ 24} We are unable to conclude that counsel’s stipulation constituted deficient

performance.

       {¶ 25} The third assignment of error is overruled.

                                     III. Conclusion

       {¶ 26} The trial court’s judgment is affirmed in part and reversed in part. That part

of the termination entry stating that Cole pleaded guilty is reversed; the rest is affirmed.

This case is remanded for the limited purpose of correcting the termination entry so that it

accurately reflects Cole’s no contest plea.

                                     .............

FAIN, J., and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck
Kirsten A. Brandt
Brent E. Rambo
Hon. Michael W. Krumholtz
