[Cite as State v. Swoveland, 2018-Ohio-2875.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              VAN WERT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 15-17-14

        v.

DAN J. SWOVELAND,                                         OPINION

        DEFENDANT-APPELLANT.




                Appeal from Van Wert County Common Pleas Court
                          Trial Court No. CR-17-04-049

                                     Judgment Affirmed

                              Date of Decision: July 23, 2018




APPEARANCES:

        Thomas J. Lucente, Jr. for Appellant

        Kelly J. Rauch for Appellee
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PRESTON, J.

       {¶1} Defendant-appellant, Dan J. Swoveland (“Swoveland”), appeals the

December 4, 2017 judgment entry of sentence of the Van Wert County Court of

Common Pleas. We affirm.

       {¶2} On May 4, 2017, the Van Wert County Grand Jury indicted Swoveland

on five counts: Counts One and Two of illegal manufacture of drugs in violation of

R.C. 2925.04(A), (C)(3)(b), first-degree felonies; Count Three of illegal assembly

or possession of chemicals for the manufacture of drugs in violation of R.C.

2925.041(A), (C), a second-degree felony; Count Four of aggravated funding of

drug trafficking in violation of R.C. 2925.05(A)(1), a first-degree felony; and Count

Five of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1),

(B)(1). (Doc. No. 3).

       {¶3} On May 10, 2017, Swoveland appeared for arraignment and pled not

guilty to the counts of the indictment. (Doc. No. 11).

       {¶4} On October 11, 2017, Swoveland withdrew his pleas of not guilty and

entered guilty pleas, under a written plea agreement, to Counts One and Three.

(Doc. No. 26). In exchange for his change of pleas, the State agreed to dismiss

Counts Two, Four, and Five of the indictment and recommend that Swoveland serve

a seven-year prison sentence. (Id.). The trial court accepted Swoveland’s guilty




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pleas, found him guilty on Counts One and Three, and ordered a presentence

investigation. (Doc. No. 27).

      {¶5} On December 4, 2017, the trial court sentenced Swoveland to 7 years

in prison on Count One and 5 years in prison on Count Three and ordered that

Swoveland serve the terms consecutively for an aggregate term of 12 years. (Doc.

No. 31).

      {¶6} On December 22, 2017, Swoveland filed a notice of appeal. (Doc. No.

45). He raises three assignments of error for our review.

                           Assignment of Error No. I

      Appellant’s guilty pleas were involuntary and should be vacated
      due to appellant’s in-court statements.

      {¶7} In his first assignment of error, Swoveland argues that his guilty pleas

were not made knowingly, intelligently, and voluntarily. In particular, Swoveland

contends that his guilty pleas were not knowing, intelligent, or voluntary because

his in-court statements do not reflect that he was knowingly, intelligently, and

voluntarily admitting guilt to Counts One and Three of the indictment.

      {¶8} “All guilty pleas must be made knowingly, voluntarily, and

intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-

Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “‘“Failure on

any of those points renders enforcement of the plea unconstitutional under both the

United States Constitution and the Ohio Constitution.”’” State v. Montgomery, 3d

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Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 10, quoting State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, ¶ 7, quoting Engle at 527. Crim.R. 11(C)(2), which

governs guilty pleas for felony-level offenses, provides:

       In felony cases the court may refuse to accept a plea of guilty or a plea

       of no contest, and shall not accept a plea of guilty or no contest

       without first addressing the defendant personally and doing all of the

       following:

       (a) Determining that the defendant is making the plea voluntarily,

       with understanding of 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 at

       the sentencing hearing.

       (b) Informing the defendant of and determining that the defendant

       understands 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.

       (c) Informing the defendant and determining that the defendant

       understands that by the plea the defendant is waiving the rights to jury

       trial, to confront witnesses against him or her, to have compulsory

       process for obtaining witnesses in the defendant’s favor, and to


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       require the state to prove the defendant’s guilt beyond a reasonable

       doubt at a trial at which the defendant cannot be compelled to testify

       against himself or herself.

       {¶9} “A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally

advise a defendant before accepting a felony plea that the plea waives the

defendant’s constitutional rights.” Montgomery at ¶ 11, citing Veney at ¶ 31.

“‘When a trial court fails to strictly comply with this duty, the defendant’s plea is

invalid.’” Id., quoting Veney at ¶ 31. “A trial court, however, is required to only

substantially comply with the non-constitutional notifications in Crim.R.

11(C)(2)(a) and (b).” Id., citing Veney at ¶ 14-17.

       {¶10} “An appellate court reviews the substantial-compliance standard

based upon the totality of the circumstances surrounding the defendant’s plea and

determines whether he subjectively understood the implications of his plea and the

rights he waived.” Id. at ¶ 12, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-

Ohio-509, ¶ 20. “‘Furthermore, a defendant who challenges his guilty plea on the

basis that it was not knowingly, intelligently, and voluntarily made must show a

prejudicial effect. * * * The test is whether the plea would have otherwise been

made.’” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).

       {¶11} In support of his argument that his guilty plea was not knowing,

intelligent, or voluntary, Swoveland points to exchanges that occurred during the


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sentencing hearing. First, Swoveland points to a statement indicating that he

“thought he could get community service” after “pleading guilty to one first-degree

felony and one second-degree felony, each with mandatory prison time.”

(Appellant’s Brief at 9). In other words, Swoveland is challenging the trial court’s

compliance with Crim.R. 11(C)(2)(a).

       {¶12} To substantially comply with the requirements of Crim.R. 11(C)(2)(a)

in instances “where a defendant faces a mandatory prison sentence,” a “trial court

must determine, prior to accepting a plea, that the defendant understands that he or

she is subject to a mandatory prison sentence and that as a result of the mandatory

prison sentence, he or she is not eligible for probation or community control

sanctions.” State v. Tutt, 8th Dist. Cuyahoga No. 102687, 2015-Ohio-5145, ¶ 19,

citing State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶ 10,

State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14, State v.

Hendrix, 12th Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, ¶ 6, and State v.

Dawson, 8th Dist. Cuyahoga No. 61828, 1993 WL 12286, *2 (Jan. 23, 1993).

       A trial court can meet this requirement either by expressly informing

       the defendant that he or she is subject to a mandatory prison sentence

       and is therefore ineligible for probation or community control

       sanctions or by confirming the defendant’s subjective understanding

       of that fact in some other way, i.e., if the “totality of the


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       circumstances” warrants the trial court in making a determination that

       the defendant otherwise understands, prior to entering his plea, that he

       or she is subject to a mandatory prison sentence.

Id. at ¶ 20, citing State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio-1796,

¶ 11 (“The mere fact that the [trial] 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.”)

and State v. McLaughlin, 8th Dist. Cuyahoga No. 83149, 2004-Ohio-2334, ¶ 19

(“[T]he trial court need not specifically inform the defendant he is ‘ineligible for

probation’ if the totality of the circumstances warrant the trial court in making a

determination the defendant understands the offense is ‘nonprobational.’”).

       {¶13} At the change-of-plea hearing, the trial court informed Swoveland that

he was subject to mandatory terms of imprisonment based on the offenses to which

he was admitting guilt. (See Oct. 11, 2017 Tr. at 18-19, 27-28); (Doc. No. 26). (See

also Oct. 11, 2017 Tr. at 26-27). Swoveland unequivocally stated that he understood

that he was subject to mandatory terms of imprisonment as a result of admitting

guilt to Counts One and Three of the indictment. (See Oct. 11, 2017 Tr. at 19, 28).

       {¶14} However, Swoveland contends that the knowingness, intelligence, and

voluntariness of his guilty pleas is undermined by his statements at the sentencing


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hearing seeking “community service” as punishment and asserting that he is “really

not guilty of what [he is] being accused of.” (Dec. 4, 2017 Tr. at 47). Swoveland’s

arguments are belied by the record. After Swoveland appealed for “community

service” and asserted that he is not guilty, the trial court stopped the sentencing

hearing to allow Swoveland to consult with his trial counsel. (Id. at 48-49). Once

Swoveland had the opportunity to consult with his trial counsel, the trial court first

inquired whether Swoveland recalled being “informed that there was a mandatory

minimum sentence on Count 1, a felony of the first degree, of four years in prison,

and a mandatory minimum sentence on Count 3, a felony of the second degree, of

three years in prison * * *.” (Id. at 50). Swoveland stated that he recalled that

information. (Id.).    Thus, we conclude that the totality of the circumstances

demonstrate that Swoveland subjectively understood that he was “subject to a

mandatory prison sentence, which rendered him ineligible for probation or

community-control sanctions.”       Tutt at ¶ 22.     Accordingly, the trial court

substantially complied with the requirements of Crim.R. 11(C)(2)(a). See id.

       {¶15} Second, Swoveland contends that the trial court failed to comply with

the requirements of Crim.R. 11(C)(2) in accepting his guilty pleas based on his

statement at the sentencing hearing that “he was not actually guilty.”          (Id.).

Although unclear, it appears that Swoveland is arguing that the trial court failed to

conduct an enhanced “Alford inquiry” to assess whether his guilty pleas were


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voluntarily and intelligently made. Compare State v. Carey, 3d Dist. Union No. 14-

10-25, 2011-Ohio-1998, ¶ 5 (“Carey now asserts that her ‘protestations of

innocence’ meant that her plea was actually an ‘Alford plea.’ Therefore, Carey

contends that the trial court erred when it accepted her plea without conducting an

enhanced inquiry in order to determine that her plea was voluntarily and

intelligently made.”). (See Appellant’s Brief at 9-10); (Dec. 4, 2017 Tr. at 48, 51-

52).

       {¶16} An “Alford plea” is a specialized type of guilty plea when the

       defendant, although pleading guilty, continues to deny his or her guilt

       but enters the guilty plea because the defendant believes that the

       offered sentence is better than what the outcome of a trial is likely to

       be.

Carey at ¶ 6, citing State v. Schmidt, 3d Dist. Mercer No. 10-10-04, 2010-Ohio-

4809, ¶ 13 and State v. Piacella, 27 Ohio St.2d 92 (1971).

       The term “Alford plea” originated with the United States Supreme

       Court’s decision in North Carolina v. Alford, wherein the Supreme

       Court held that guilty pleas linked with claims of innocence may be

       accepted provided the “defendant intelligently concludes that his

       interests require entry of a guilty plea and the record before the judge

       contains strong evidence of actual guilt.”


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Id., quoting 400 U.S. 25, 37, 91 S.Ct. 160 (1971). “Although an Alford plea allows

a defendant to maintain his factual innocence, the plea has the same legal effect as

a guilty plea.” Id., citing State v. Vogelsong, 3d Dist. Hancock No. 5-06-60, 2007-

Ohio-4935, ¶ 15.

       {¶17} “All pleas, including an Alford plea, must meet the general

requirement that the defendant knowingly, voluntarily, and intelligently waived his

or her right to trial.” Id. at ¶ 7, citing State v. Padgett, 67 Ohio App.3d 332, 337-

338 (2d Dist.1990), construing Crim.R. 11(C).

       Where the defendant interjects protestations of innocence into the plea

       proceedings, and fails to recant those protestations of innocence, the

       trial court must determine that the defendant has made a rational

       calculation to plead guilty notwithstanding his belief that he is

       innocent. This requires, at a minimum, inquiry of the defendant

       concerning his reasons for deciding to plead guilty notwithstanding

       his protestations of innocence; it may require, in addition, inquiry

       concerning the state’s evidence in order to determine that the

       likelihood of the defendant’s being convicted of offenses of equal or

       greater magnitude than the offenses to which he is pleading guilty is

       great enough to warrant an intelligent decision to plead guilty.

(Emphasis added.) Padgett at 338-339.


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       {¶18} Notwithstanding Swoveland’s argument, the record does not support

that he entered an Alford plea. See Carey at ¶ 8 (“Although Carey now claims that

she entered an ‘Alford plea,’ the record does not support that assertion.”). Despite

Swoveland’s protestation of innocence, Swoveland recanted that protestation of

innocence later during the sentencing hearing. See id. (“Carey made one, tenuous

denial as to her participation in the events but, thereafter, she fully acknowledged

her guilt.”). See also id. at ¶ 9, citing Padgett at 338-339.

       {¶19} Indeed, the trial court inquired:

       [Trial Court]:    Mr. Swoveland, I’m going to ask you two more

                         questions. You previously entered a plea of guilty

                         to Count 1, Illegal Manufacturing of Drugs, a

                         violation of [R.C.] 2925.04(A)[, (C)](3), a felony of

                         the first degree. Sir, are you guilty of that offense?

                         ***

       [Swoveland]:      Yes

       [Trial Court]:    Likewise, in Count 3, Illegal Assembly or

                         Possession of Chemicals for Manufacturing of

                         Drugs, a violation of [R.C. 2925.041(A), (C)], a

                         felony of the second degree, are you guilty of that

                         offense, sir?


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       [Swoveland]:      Yes, your honor.

(Dec. 4, 2017 Tr. at 52-53). Moreover, neither Swoveland nor his trial counsel

represented that his pleas were Alford pleas. See Carey at ¶ 8 (“Neither Carey nor

her attorney ever represented her plea to be an Alford plea—not during the plea

negotiations, not at the change of plea hearing, nor in her lengthy plea agreement.”),

citing State v. Pate, 3d Dist. Hancock No. 5-96-12, 1996 WL 689196, *3 (Nov. 19,

1996) (noting that the requirements for an Alford plea were not met because “there

was never any oral or written notice that such a plea was being attempted”). At best,

Swoveland’s trial counsel referred to Swoveland’s guilty pleas at the sentencing

hearing as entered on what he “would call Alford terms,” to which the trial court

responded that “we didn’t do an Alford plea.” (Dec. 4, 2017 Tr. at 48). Moreover,

while Swoveland’s trial counsel later acknowledged on the record that Swoveland’s

pleas were not Alford pleas, he stated, “Again, we did not specify Alford during the

plea, but as a practical matter, Mr. Swoveland’s, I guess, intent in entering into the

plea was very much akin to an Alford plea under the circumstances.” (Id. at 51-52).

Equating a plea to an Alford plea does not render that plea an Alford plea. As we

discussed above, an Alford plea is a specific legal tool with specific procedural

requirements. None of those requirements were satisfied in this case.

       {¶20} Accordingly, because the requirements of an Alford plea were not

satisfied, and because Swoveland recanted his protestation of innocence, we need


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not, and do not, address whether the trial court erred by accepting Swoveland’s

guilty pleas without conducting an enhanced inquiry as required for an Alford plea.

Rather, Swoveland’s guilty pleas were knowing, intelligent, and voluntary within

the “ordinary” meaning of Crim.R. 11(C)(2).

       {¶21} As we decided above, the trial court substantially complied with the

requirements of Crim.R. 11(C)(2)(a). The trial court also substantially complied

with the requirements of Crim.R. 11(C)(2)(b). “Crim.R. 11(C)(2)(b) requires the

trial court to inform the defendant of the effect of his guilty or no-contest plea and

to determine whether he understands that effect.”           State v. Jones, 2d Dist.

Montgomery No. 25688, 2014-Ohio-5574, ¶ 7, citing State v. Jones, 116 Ohio St.3d

211, 2007-Ohio-6093, ¶ 12 and State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-

4415, ¶ 10-12. See also Crim.R. 11(B). “To satisfy the effect-of-plea requirement

under Crim.R. 11(C)(2)(b), a trial court must inform the defendant, either orally or

in writing, of the appropriate language in Crim.R. 11(B).” Id. at ¶ 8, citing Jones at

¶ 25, 51. In this case, under Crim.R. 11(B), the trial court was required to inform

Swoveland that “[t]he plea of guilty is a complete admission of [his] guilt.” Crim.R.

11(B)(1). The trial informed Swoveland that his guilty pleas were “a complete

admission of guilt,” and Swoveland indicated that he understood that his pleas were

a complete admission of guilt. (Oct. 11, 2017 Tr. at 21).




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       {¶22} Finally, the trial court strictly complied with Crim.R. 11(C)(2)(c)

during its colloquy with Swoveland at the change-of-plea hearing. (Id. at 21-23).

Compare Montgomery, 2014-Ohio-1789, at ¶ 13 (concluding that “the trial court

strictly complied with Crim.R. 11(C)(2)(c) at the change-of-plea hearing”).

Swoveland indicated that he understood the rights that he was waiving by pleading

guilty. (Oct. 11, 2017 Tr. at 21-23). See Montgomery at ¶ 13. Consequently, we

are not persuaded that the trial court erred by accepting Swoveland’s guilty pleas.

Montgomery at ¶ 13. Stated another way, Swoveland’s guilty pleas were not

rendered unknowing, unintelligent, or involuntary based on his statements at the

sentencing hearing. Moreover, Swoveland failed to argue—much less establish—

prejudice in this case, i.e. that he would not have pled guilty but for the trial court’s

alleged errors. Id., citing Nero, 56 Ohio St.3d at 108.

       {¶23} Swoveland’s first assignment of error is overruled.

                            Assignment of Error No. II

       Appellant’s guilty pleas were involuntary and should be vacated
       due to the appellant’s incompetency and the trial court committed
       plain error by failing to sua sponte order a competency evaluation
       of appellant prior to accepting the guilty plea.

       {¶24} Swoveland argues under his second assignment of error that his guilty

pleas were invalid because the trial court failed to sua sponte order a hearing

regarding Swoveland’s competency to knowingly, intelligently, and voluntarily

plead guilty.

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       {¶25} In addition to the requirement that a defendant’s guilty plea be

knowing, intelligent, and voluntary, a trial court must satisfy itself that a defendant

who seeks to plead guilty is competent. State v. Montgomery, 148 Ohio St.3d 347,

2016-Ohio-5487, ¶ 56, reconsideration granted in part in other grounds, 147 Ohio

St.3d 1438, 2016-Ohio-7677, citing Godinez v. Moran, 509 U.S. 389, 396, 400, 113

S.Ct. 2680 (1993). “A defendant is presumed competent to stand trial, and the

burden is on the defendant to prove by a preponderance of the evidence that he is

not competent.” State v. Prophet, 10th Dist. Franklin No. 14AP-875, 2015-Ohio-

4997, ¶ 13, citing State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶ 28, State

v. Scurlock, 2d Dist. Clark No. 2002-CA-34, 2003-Ohio-1052, ¶ 77, and R.C.

2945.37(G).

       {¶26} In a criminal action in a court of common pleas, * * * the court,

       prosecutor, or defense may raise the issue of the defendant’s

       competence to stand trial. If the issue is raised before the trial has

       commenced, the court shall hold a hearing on the issue as provided in

       this section. If the issue is raised after the trial has commenced, the

       court shall hold a hearing on the issue only for good cause shown or

       on the court’s own motion.

R.C. 2945.37(B). In assessing whether to order such a hearing, the trial court should

consider “‘(1) doubts expressed by counsel as to the defendant’s competence, (2)


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evidence of irrational behavior, (3) the defendant’s demeanor at trial, and (4) prior

medical opinion relating to competence to stand trial.’” State v. Hartman, 174 Ohio

App.3d 244, 2007-Ohio-6555, ¶ 15 (3d Dist.), quoting State v. Rubenstein, 40 Ohio

App.3d 57, 60-61 (8th Dist.1987).

       {¶27} “The constitutional standard for assessing a defendant’s competency

to enter a guilty plea is the same as that for determining his competency to stand

trial.” Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, at ¶ 56, citing Godinez

at 398-399. “The defendant must have a ‘“sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding” and [have] “a

rational as well as factual understanding of the proceedings against him.”’” Id.,

quoting Godinez at 396, quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788

(1960).

       {¶28} Because it is left to the discretion of the trial court, we review a trial

court’s decision to order a competency hearing for an abuse of discretion. State v.

Shepherd, 3d Dist. Wyandot No. 16-09-03, 2009-Ohio-3317, ¶ 9; Prophet, 2015-

Ohio-4997, at ¶ 14, citing State v. Smith, 89 Ohio St.3d 323, 330 (1990). An abuse

of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable.

State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). “When reviewing the trial

court’s decision on whether to conduct a competency hearing sua sponte, an




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appellate court should give deference to the trial court since it was able to see and

hear what transpired in the courtroom.” Shepherd at ¶ 9, citing Smith at 330.

       {¶29} It is undisputed that Swoveland’s competency was not raised prior to

the change-of-plea hearing. Instead, Swoveland contends that the trial court abused

its discretion by failing to order a hearing regarding his competency based on the

evidence discussed under his first assignment of error regarding the knowingness,

intelligence, and voluntariness of his guilty pleas coupled with statements made by

the trial court and Swoveland’s trial counsel at the change-of-plea and sentencing

hearings, respectively.

       {¶30} In support of his argument, Swoveland points to an exchange during

the change-of-plea hearing as evidence that the trial court harbored concern

regarding his competency. That exchange, which concerned his release before

sentencing, reflects:

       [Trial Court]:     Now it’s my understanding that you’re going to go

                          to your, is it your sister’s house or your brother’s

                          house?

       [Swoveland]:       Do I have to? Could I go home to my own house?

                          Your honor?

       [Trial Court]:     I’m concerned about that.

       [Swoveland]:       Why?


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       [Trial Court]:    I don’t have to state all of my concerns.

       [Swoveland]:      Huh?

(Oct. 11, 2017 Tr. at 34). Swoveland also points to his trial counsel’s statement at

the sentencing hearing that Swoveland “‘doesn’t process information the same way

the rest of us do.’” (Appellant’s Brief at 10, quoting Dec. 4, 2017 Tr. at 45).

       {¶31} After reviewing the record, we cannot conclude that the trial court

acted unreasonably, arbitrarily, or unconscionably by failing to sua sponte order a

hearing regarding Swoveland’s competency.          There is insufficient indicia of

incompetence. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 157.

Under the factors that the trial court should consider when deciding whether to order

a competency hearing, there is no evidence that Swoveland behaved irrationally in

the courtroom or that there is a prior medical opinion relating to Swoveland’s

competence to stand trial. To the extent that Swoveland argues that the trial court

and his trial counsel expressed doubts as to Swoveland’s competency, we disagree.

First, Swoveland hypothesizes that the trial court “did not feel safe letting him be

alone under house arrest” in response to the trial court’s statement to Swoveland

that it was not required to recite its concerns for prohibiting Swoveland to be

released to his residence. (Appellant’s Brief at 12). There is no evidence in the

record supporting Swoveland’s hypothesis. Instead, there is evidence in the record

reflecting that the trial court could have harbored concerns other than Swoveland’s


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mental state—that is, there is evidence in the record reflecting Swoveland’s personal

drug abuse and propensity to engage in criminal activity when pressured by others.

Without definitive evidence that the trial court actually possessed concerns about

Swoveland’s competency, we defer to the trial court’s determination, as we are

required to do, since it was able to see and hear what transpired in the courtroom.

       {¶32} Second, Swoveland’s argument that his trial counsel’s statement that

he processes information differently demonstrates that his trial counsel expressed

doubts as to his competence is also erroneous. Read in context, Swoveland’s trial

counsel’s statement was part of his statement to the trial court before Swoveland’s

sentencing explaining the circumstances of the case. Indeed, the spirit of the

evidence that Swoveland’s trial counsel presented on Swoveland’s behalf in

mitigation of a harsh sentence was that he is easily impressionable and was

pressured into participating in the criminal activity.

       {¶33} Finally, based on our analysis under Swoveland’s first assignment of

error, we summarily reject Swoveland’s argument relying on any evidence that his

guilty pleas were not knowing, intelligent, or voluntary as indicia of incompetence.

       {¶34} Beyond the factors that the trial court should consider when

determining whether to order a competency hearing, there is also no evidence in the

record that Swoveland was incompetent. That is, there is no evidence in the record

reflecting that Swoveland did not have a sufficient present ability to consult with


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his trial attorney with a reasonable degree of rational understanding and no evidence

that Swoveland did not have a rational and factual understanding of the proceedings

against him. See State v. Ferguson, 2d Dist. Montgomery No. 27325, 2018-Ohio-

987, ¶ 18, citing State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 32, citing

State v. Berry, 72 Ohio St.3d 354, 359 (1995) and Dusky, 362 U.S. at 402.

       {¶35} Indeed, at the change-of-plea hearing, Swoveland appropriately

responded to the trial court’s colloquy. In particular, Swoveland declared that he

understood the nature of the charges against him; that he had an opportunity to

review and discuss those charges with his trial counsel; that he was satisfied with

his trial counsel’s representation; and that he was not under the influence of drugs

or alcohol. (Oct. 11, 2017 Tr. at 19-20, 24, 29-30). Moreover, Swoveland executed

the negotiated plea agreement reflecting the same. (Doc. No. 26). Compare

Shepherd, 2009-Ohio-3317, at ¶ 12.

       {¶36} For these reasons, we conclude that the trial court did not abuse its

discretion by failing to sua sponte order a hearing regarding Swoveland’s

competency. As such, to the extent that Swoveland argues that his guilty pleas are

invalid because he was incompetent, we reject Swoveland’s argument.

       {¶37} Swoveland’s second assignment of error is overruled.

                           Assignment of Error No. III

       Defendant was denied the effective assistance of counsel as
       required by the Sixth Amendment to the U.S. Constitution.

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          {¶38} In his third assignment of error, Swoveland argues, for largely the

same reasons asserted in his second assignment of error, that his trial counsel was

ineffective for failing to request a hearing regarding Swoveland’s competency.

          {¶39} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). To establish prejudice when ineffective assistance of

counsel relates to a guilty plea, a defendant must show there is a reasonable

probability that but for counsel’s deficient or unreasonable performance the

defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992),

citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Strickland, 466 U.S.

at 687.

          {¶40} Based on our conclusions in Swoveland’s second assignment of error,

we reject Swoveland’s ineffective-assistance-of-counsel argument.             That is,

Swoveland cannot show that his trial counsel’s performance was deficient or

unreasonable under the circumstances because, as we concluded under Swoveland’s

second assignment of error, there is insufficient indicia in the record demonstrating

that the trial court should have ordered a competency hearing or that Swoveland was

incompetent.

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       {¶41} Swoveland’s third assignment of error is overruled.

       {¶42} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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