[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 
-iFOR 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