[Cite as State v. Purdy , 2022 - Ohio - 1131.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

STATE OF OHIO, PLAINTIFF - APPELLEE, CASE NO. 2 - 21 - 16

v. CHARLES M. PURDY, II, O P I N I O N DEFENDANT - APPELLANT.

Appeal from Auglaize County Common Pleas Court

Trial Court No. 2021 - CR - 0055 Judgment Affirmed Date of Decision: April 4, 2022

APPEARANCES: 

### James F. Hearn for Appellant 

### Laia Zink f

or AppelleeCase No. 2

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ZIMMERMAN , P. J. {¶1} Defendant

- a ppellant, Charles M. Purdy, II (“ Purdy ”), appeals the July 20, 2021 judgment entry of sentence of the Auglaize County Court of Common Pleas

. For the reasons that follow, we affirm. {¶2} On March 18, 2021 , the Auglaize County Grand Jury indicted Purdy on fourteen counts of pandering obscenity involving a minor in violation of R.C. 2907.321(A)(5) , fourth

- degree felonies

. On March 23, 2021 , Purdy appeared for arraignment and entered pl eas of not guilty. {¶3} On July 19 , 2021, Purdy withdrew his pleas of not guilty and entered pleas of guilty, under a negotiated

- plea agreement, to the counts of the indictment. In exchange for his change of pleas, the State agreed to a joint

- sentencing recommendation. The trial court accepted Purdy’s guilty pleas, found him guilty, and sentenced Purdy to 18 months in prison on Counts One through Eight and 12 months in prison on Counts Nine through Fourteen. 1 (Doc. N o. 43 ). The trial court ordered that Purdy serve the prison terms for Counts One through Eight consecutively. ( Id. ). Further, the prison terms imposed as to Counts Nine through Fourteen were ordered to be served concurre ntly to the consecutive prison

- te rm s imposed as to Counts One through Eight, for an aggregate sentence of 144 months in prison (one

- year less than the joint

- sentencing recommendation of the parties)

.

1 The trial court filed its judgment entry of conviction and sentence on July 20, 2021. (Doc. No.43).Case No. 2

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( Id. ) ; (July 19, 2021 Tr. at 43)

. The trial court also classified Purdy as a Tier II se x offender. {¶4} On August 31, 2021 , Purdy filed a motion for a delayed appeal, which this court granted on September 10, 2021 . ( See also Doc. No. 66 ). He raises two assignment of error for our review. Assignment of Error No. I The Trial Court erred when it failed to order a competency evaluation of the Defendant prior to his change of plea . {¶5} In his first assignment of error, Purdy argues that the trial court erred by failing to sua sponte order a competency evaluation prior to accep ting his guilty pleas. Specifically, Purdy contends that the trial court had a duty to sua sponte order a competency evaluation because it was disclosed on the record that he suffered a traumatic

- brain injury during his military service in Afghanistan. Standard of Review {¶6} “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. Swoveland , 3 d Dist. Van Wert No. 15

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- 14, 2018

- Ohio

- 2875, ¶ 28, citing Sta te v. Shepherd , 3d Dist. Wyandot No. 16

- 09

- 03, 2009

- Ohio

- 3317, ¶ 9 and State v. Prophet , 10th Dist. Franklin No. 14AP

- 875, 2015

- O hio

- 4997, ¶ 14, citing State v. Smith , 89 Ohio St.3d 323, 330 (1990). An abuse of discretion suggests that a decision is unrea sonable, arbitrary, or unconscionable. State v. Adams , 62 OhioCase No. 2

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St.2d 151, 157

- 158 (1980). “‘When reviewing the trial court’s decision on whether to conduct a competency hearing sua sponte, an appellate court should give deference to the trial court since it was able to see and hear what transpired in the
courtroom. ’” Swoveland at ¶ 28, quoting Shepherd at ¶ 9, citing Smith at 330. Analysis {¶7} “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.” Id. at ¶ 25. “‘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.’” Id

. , quoting Prophet at ¶ 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). In a criminal action in a court of common pleas, * * * the court, pros ecutor, 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 ha s commenced, the court shall hold a hearing on the issue only for g ood cause shown or on the court’ s own motion. R.C. 2945.37(B). “I n assessing whether to order such a hearing, th e trial court should consider ‘ “ (1) doubts expressed by counsel as to the defendant’ s competence, (2) evidence of irratio nal behavior, (3) the defendant’ s demeanor atCase No. 2

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trial, and (4) prior medical opinion relating to competence to stand trial. ” ’ ” Swoveland at ¶ 26, quoting State v. Hartman , 174 Ohio App .3d 244, 2007

- Ohio

6555, ¶ 16 (3d Dist.), quoting State v. Rubenstein , 40 Ohio App.3d 57, 60

- 61 (8th Dist.1987). {¶8} “ ‘ The constitutional sta ndard for assessing a defendant’ s competency to enter a guilty plea is the same as that for determining his competency to stand trial. ’ ” Id. at ¶ 27, quoting State v. Montgomery , 148 Ohio St.3d 347, 2016

- Ohio

5487, ¶ 56, reconsideration granted in part on other grounds , 147 Ohio St.3d 1438, 2016

- Ohio

- 7677, citing Godinez v. Moran , 509 U.S. 389, 398

- 399 , 113 S.C t. 2680 (1993)

. “ ‘The defendant must have a “ ‘ sufficient present ability to consult with his lawyer with a reasonable d egree of rational understanding’ and [have] ‘ a rational as well as factual understanding of the proceedings against him. ’ ”’” Id. , quoti ng Montgomery at ¶ 56, quoting Godinez at 396, quoting Dusky v. United States , 362 U.S. 402, 80 S.Ct. 788 (1960). {¶9} In this case, there is no dispute that Purdy ’s competency was not raise d prior to the change

- of

- plea hearing. Rather, Purdy contends that the trial court abused its discretion by failing to sua sponte order a hearing regarding his competency based on the evidence revealed at the change

- of

- plea hearing that he suffered a traumatic

- brain injury during his military service in Afghanistan. Particu larly, Purdy contends that the record contains sufficient indicia ofCase No. 2

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incompetence based on his exchange with the trial court during which he informed the trial court that he was unable “to pass a physical for a nursing degree ” as a result of his brain inju ry. (Appellant’s Brief at 9). {¶10} “It is now well established, however, that having a mental illness or taking medications to treat a mental illness, does not equate with a finding of legal incompetency. ” Prophet , 2015

- Ohio

- 4997, ¶ 21 , citing State v. Berry , 72 Ohio St.3d 354, 362 (1995) , State v. Ke tterer , 111 Ohio St.3d 70, 2006

- Ohio

- 5283, ¶ 71, State v. Bock , 28 Ohio St.3d 108, 110 (1986) , and R.C. 2945.37(F)

. See also State v. Whitling , 12th Dist. No. CA2016

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- 202, 2018

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- 1360, ¶ 42 (Piper, J., dissenting) (acknowledging that “[p] ast brain injury has been determined to be insufficient indicia of incompetency and the failure to hold a hearing was harmless”), citing El ey v. Bagley , 604 F.3d 958, 966

- 967 (6th Cir.2010). {¶11} B ased on our review of the re cord, the trial court did not act unreasonably, arbitrarily, or unconscionably by failing to sua sponte order a hearing regarding Purdy’s competency because there is insufficient indicia of incompetence. Accord Swoveland , 2018

- Ohio

- 2875, at ¶ 31 . Indeed, there is no evidence in the record that Purdy behaved irrationally in the courtroom or that there is a prior medical opinion relating to Purdy’s competency to stand trial. See id. Furthermore, neither Purdy’s trial counsel nor Purdy expressed doubts as to his competence. Importantly, the record reflects that the trial court conducted a further exchange withCase No. 2

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Purdy regarding his brain injury during which the trial court concluded that the brain injury did not impact Purdy’s competency. Specifically, duri ng that exchange, Purdy informed the trial court that he did not “believe” that his brain injury “is to blame for” his conduct and that he “did not try to plea [sic] insanity or anything.” (July 19, 2021 Tr. at 41

- 42). {¶12} Moreover, b eyond the factors that th e trial court should consider when determining whether to order a competency hearing, there is no evidence in the record that Purdy was incompetent. That is, there is no evidence in the record reflecting that Purdy did not have a sufficient present abilit y to consult with his trial attorney with a reasonable degree of rational understanding and no evidence that Purdy did not have a rational and factual understanding of the proceedings against him. Accord Swoveland at ¶ 34, citing State v. Ferguson , 2d Dis t. Montgomery No. 27325, 2018

- Ohio

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

- Ohio

- 1914, ¶ 32, citing Berry at 359 and Dusky , 362 U.S. at 402. {¶13} Specifically, during the change

- of

- plea hearing, Purdy appropriately responded to the tria l cou rt’ s colloquy. See Prophet , 2015

- Ohio

- 4997, at ¶ 19 , citing State v. Thomas , 97 Ohio St.3d 309, 2002

- Ohio

- 6624, ¶ 38

. In particular, Purdy 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

s atisfied with his trial counsel’ s representation; and that he was not under theCase No. 2

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influenc e of drugs or alcohol. Likewise , Purdy executed the negotiated

- plea agreement refl ecting the same. Accord Swoveland at ¶ 35, citing Shepherd , 2009

- Ohio

- 3317, at ¶ 12. {¶14} For these reasons, we conclude that the trial court did not abuse its discretion by fai ling to sua sponte order a hearing regarding Purdy’s competency. {¶15} Thus, Purdy’s first assignment of error is overruled.

Assignment of Error No. II Defendant was provided ineffective assistance of counsel when Defendant’s attorney failed to request a comp etency evaluation prior to plea change, or any sort of expert evaluation prior to sentencing. {¶16} In his second assignment of error, Purdy argues that his trial counsel was ineffective for failing to request a hearing regarding his competency. Standard of Rev iew {¶17} 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),Case No. 2

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citing Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Strickland , 466 U.S. at 687. Analysis {¶18} Based on our conclusion in Purdy’s first assignment of error, we reject Purdy’s ineffective

- assistance

- of

- counsel argument. That is, Purdy cannot show that his trial counsel’s performance was deficient or unreasonable under the circumstances because, as we concluded u nder Purdy’s first assignment of error, there is insufficient indicia in the record demonstrating that the trial court should have ordered a competency hearing or that Purdy was incompetent. {¶19} Therefore, Purdy’s second assignment of error is overruled. {¶20} 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 SHAW and WILLAMOWSKI, J.J., concur. /jlr