[Cite as Strongsville v. Petronzio, 2016-Ohio-101.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 102345



                              CITY OF STRONGSVILLE
                                                            PLAINTIFF-APPELLEE

                                                      vs.

                                ANTHONY PETRONZIO
                                                            DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                        Criminal Appeal from the
                                         Berea Municipal Court
                                        Case No. 13 CRB 01026-1

               BEFORE:           Blackmon, J., Jones, A.J., and Boyle, J.

               RELEASED AND JOURNALIZED:                       January 14, 2016
                               -i-


FOR APPELLANT

Anthony Petronzio, pro se
5377 West Ridgewood Drive
Parma, Ohio 44134


ATTORNEY FOR APPELLEE

George F. Lonjak
Strongsville City Prosecutor
614 Superior Avenue
Suite 1310
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

      {¶1} Anthony Petronzio (Petronzio) appeals pro se various issues that arose

during municipal court proceedings in which he pled no contest to one count of

aggravated menacing. Petronzio assigns the following four errors for our review:

      I. Defendant was deprived of his right to due process under the State and
      Federal Constitutions when the trial court ordered psychiatric evaluations to
      determine competency and sanity but failed to hold hearings on these issues
      as required by R.C. 2945.37.

      II. Defendant was denied his right to counsel as guaranteed by the Sixth
      Amendment to the United States Constitution and Article 1, Section 10 of
      the Ohio Constitution.

      III. The trial court erred when it accepted a plea of no contest where the
      defendant did not enter the plea in a knowing and voluntary manner.

      IV. The trial court erred when it issued a protection order that included

      names of adults who were not alleged victims of the offenses.

      {¶2} Having reviewed the record and pertinent law, we affirm Petronzio’s

conviction. The apposite facts follow.

                             Facts and Procedural History

      {¶3} On September 30, 2013, the Berea Municipal Court held a hearing and

issued a criminal protection order against Petronzio, listing the following family members

as protected persons: Cynthia L. Smith (Petronzio’s sister); Phyllis D. Faehnrich

(Petronzio’s mother); George D. Smith (Petronzio’s brother-in-law); and David J.

DeFlorentis (Petronzio’s nephew). The protection order stems from allegations by
Petronzio’s sister that, in November 2011, Petronzio harassed and threatened her and her

family concerning adoption documents that Petronzio accused his sister of withholding

from him.

       {¶4} At this proceeding, Petronzio pled not guilty to one count of aggravated

menacing and one count of telephone harassment. The court asked Petronzio if he was

indigent and if he wanted a court-appointed attorney. Petronzio replied “yes” to both

inquiries, and the court appointed counsel to represent him. However, on December 20,

2013, the court held a hearing at which it granted Petronzio’s motion to dismiss counsel

and assign a new attorney.

       {¶5} On May 2, 2014, the court, at Petronzio’s new counsel’s request, ordered a

psychiatric evaluation to determine Petronzio’s competency to stand trial and sanity at the

time of the incidents in question.   On October 23, 2014, the court issued a journal entry

stating, in part, that “[u]pon review of Competency Evaluation the Court finds the

defendant to be competent to proceed forward.”         This journal entry also states that

“[u]pon review of the Motion to Dismiss Council [sic] and proceed pro so, the Court

finds the defendant previously requested a Court appointed attorney, the case shall

proceed with the attorney, the Motion shall be further heard at the next hearing.” Neither

the competency evaluation nor the motion to dismiss counsel are part of the record.

       {¶6} On November 21, 2014, the court accepted Petronzio’s no contest plea to

one count of aggravated menacing in violation of R.C. 2903.21 and sentenced him to

three years basic probation. It is from this order that Petronzio appeals.
                                         No Contest Plea

       {¶7} For ease of discussion, we address Petronzio’s assigned errors out of order.

In his third assigned error, Petronzio argues that the trial court erred when it accepted his

no contest plea. Pursuant to Crim.R.11(B)(2), a no contest plea is not an admission of

guilt, but is an admission of the truth of the facts in the indictment. A defendant’s “right

to appeal is decidedly limited under a no contest plea. Generally speaking, a no contest

plea waives all nonjurisdictional defects to a * * * conviction * * *, however, [it] does not

preclude * * * a defendant from asserting upon appeal that the trial court prejudicially

erred in ruling on a pretrial motion.”

       {¶8} Pursuant to Crim.R. 11(E), when a municipal court accepts a no contest

plea in misdemeanor cases involving petty offenses, the court must inform the defendant

of the effect of his or her plea. Aggravated menacing, which is the charge Petronzio pled

to, is a petty offense. See Barberton Police Dept. v. Easley, 9th Dist. Summit No. 24624,

2009-Ohio-6796.

       {¶9} Petronzio argues that “the only direct dialogue between the court and

Defendant consisted of the court informing Defendant of the consequences of a plea of

No Contest.” At the plea hearing, the court stated to Petronzio as follows: “So be

advised when you plead no contest, you’re not admitting guilt to the charge itself, but

you’re admitting that the facts that the charges are based on are true. So you can assume

that I’d find you guilty.   The results of the plea cannot be used against you later in a

civil or criminal proceeding.” The court then asked Petronzio, “Do you understand
that?” Petronzio responded, “Yes, sir,” and the court stated, “I’ll accept the No Contest

plea and find guilty [sic].”

       {¶10} Petronzio is correct in arguing that the court “only” informed him of the

consequences of his plea; however, under Crim.R. 11(E), that is all the court is required

to do for a misdemeanor case involving a petty offense. See State v. Watkins, 99 Ohio

St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 28, (“where a defendant charged with a

petty misdemeanor * * * pleads guilty or no contest, the trial court complies with

[Crim.R. 11(E)] by informing the defendant” of the effect of his plea).    Petronzio’s third

assigned error is overruled.

                                   R.C. 2945.37 Hearing

       {¶11} In his first assigned error, Petronzio argues that the trial court erred when it

failed to hold a competency hearing.       Criminal defendants are rebuttably presumed

competent to stand trial.      R.C. 2945.37(G).   Incompetency is defined as when “the

defendant is incapable of understanding the nature and objective of the proceedings

against the defendant or of assisting in the defendant’s defense * * *.”           Id.   If a

defendant’s competency to stand trial “is raised before the trial has commenced, the court

shall hold a hearing on the issue * * *.” R.C. 2945.37(B).

       {¶12} Despite the statutory language indicating a mandatory hearing, Ohio courts

have held that “the failure to hold the mandatory competency hearing is harmless error

when the record fails to reveal sufficient indicia of incompetence.” State v. Smith, 8th

Dist. Cuyahoga Nos. 96582, 96622, 96623, 2012-Ohio-261, ¶ 24. See also State v. Bock,
28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). (“Incompetency must not be equated

with mere mental illness 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”).

       {¶13} If applicable, the defendant “carries the burden of establishing

incompetence.” State v. Hudson, 8th Dist. Cuyahoga No. 96435, 2011-Ohio-6272, ¶ 27.

In determining if incompetence was established, courts should consider the following:

“(1) doubts expressed by counsel as to the defendant’s competence; (2) evidence of

irrational behavior; (3) the defendant’s demeanor at trial; and (4) prior medical opinion

relating to competence to stand trial.” State v. Rubenstein, 40 Ohio App.3d 57, 60-61,

531 N.E.2d 732 (8th Dist.1987).

       {¶14} In the case at hand, a competency evaluation was ordered at a hearing on

May 2, 2014. There was no motion filed and no explanation at the hearing as to the

reasons requesting the evaluation. Upon review of the hearing transcripts, there is no

evidence of Petronzio behaving irrationally. Although the court noted that Petronzio

appeared to be angry at some of his family members during the hearings, Petronzio’s

demeanor with the court was polite and appropriate. Furthermore, no medical opinions

were submitted into evidence, and there is no indication on the record that a psychiatric or

competency evaluation was filed with the court.

       {¶15} It is undisputed that the court did not hold a competency hearing. Rather,

the court issued a journal entry on October 23, 2014, summarily finding, “[u]pon review
of Competency Evaluation,” that Petronzio was “competent to proceed forward.”

Additionally, during his plea and sentencing hearing on November 21, 2014, an unknown

“female voice” stated on the record that Petronzio “did come through the competency

evaluation without any issues, but there are some underlying mental health issues.”

Upon review of the record, we find no other mention of Petronzio’s competency to stand

trial.

         {¶16} Accordingly, we find that the record fails to contain sufficient indicia of

incompetence to warrant a hearing, and Petronzio’s first assigned error is overruled.

                                Right to Self-Representation

         {¶17} In his second assigned error, Petronzio argues that he was denied his right to

self-representation.    “[A] defendant in a state criminal trial has an independent

constitutional right of self-representation and * * * he may proceed to defend himself

without counsel when he knowingly, voluntarily and intelligently elects to do so.” State

v. Gibson, 45 Ohio St.2d 366, 377-378, 345 N.E.2d 399 (1976). However, a defendant

waives the right of self-representation “if it is not timely and unequivocally asserted.”

(Citation omitted.) State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81,

¶ 38.

         {¶18} It is an appellant’s obligation to provide the reviewing court with a

sufficient record of the lower court proceedings. App.R. 9(B). “This is necessarily so

because an appellant bears the burden of showing error by reference to matters in the

record.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384
(1980). “In the absence of an adequate record, this court must presume the regularity of

the trial court’s actions and affirm its judgment.” Shaw v. Shaw, 72 Ohio App.3d 546,

548, 595 N.E.2d 500 (8th Dist.1991).

      {¶19} In the instant case, the record is inadequate to determine whether

Petronzio’s request for self-representation was timely or unequivocally asserted. The

trial court’s October 23, 2014 journal entry references a “Motion to Dismiss Council [sic]

and proceed pro se”; however, this motion is not part of the record. It is unclear when, or

even if, the motion was filed with the court, and the record is silent as to whether

Petronzio clearly invoked his right to represent himself. See, e.g., Cassano at ¶ 41 (the

defendant’s request to represent himself was properly denied as “an attempt to delay the

trial” when it was made three days before trial but after the defendant was represented by

counsel for over ten months).

      {¶20} Absent evidence of Petronzio’s asserting his right to self-representation, we

cannot meaningfully review this assigned error and must presume regularity of the

proceedings below. Petronzio’s second assigned error is overruled.

                                Criminal Protection Order

      {¶21} In his fourth assigned error, Petronzio argues that the trial court erred when

it issued the protection order. Petronzio argues on appeal that the criminal protection

order issued in this case was too broad and unsupported by the evidence. However, the

order at issue in this case expired on November 21, 2014, when Petronzio entered a no

contest plea. On this same date, and as part of that plea, Petronzio agreed on the record
to have no contact with specific family members including “all brothers and sisters and

their family and their spouses.”

       {¶22} Arguments concerning the sufficiency or weight of the evidence are waived

when a defendant pleads no contest. See, e.g., State v. Deresse, 5th Dist. Licking No.

09-CA-11, 2009-Ohio-6725. By pleading no contest, a defendant waives “the right to a

trial by jury; to confront witnesses against him; to have compulsory process for obtaining

witnesses in his favor, to require the state to prove his guilt beyond a reasonable doubt;

and the right not to be compelled to testify against himself.” State v. Pernell, 27 Ohio

App.2d 261, 265, 353 N.E.2d 891 (8th Dist.1976).

       {¶23} Petronzio is not bound by the terms of the protection order that expired on

November 21, 2014, and he waived his right to challenge the terms of his no contest plea.

 Accordingly, Petronzio’s fourth and final assigned error is overruled.

       {¶24} 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 be sent to the Berea Municipal 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.
PATRICIA ANN BLACKMON, JUDGE

LARRY A. JONES, SR., A.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN
JUDGMENT ONLY
