[Cite as State v. Holman, 2014-Ohio-3908.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 100468

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

JASON E. HOLMAN

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED FOR RESENTENCING 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-10-537311 

BEFORE: Stewart, J., Rocco, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: September 11, 2014 
ATTORNEY FOR APPELLANT 

Brian R. McGraw 

1370 Ontario Street, Suite 2000 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Mary Weston 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} The trial court found defendant-appellant Jason Holman guilty of breaking 

and entering, and burglary in two cases. The court ordered a suspended sentence and 

ordered Holman to comply with the terms of his probation. In October 2012 after a 

probation revocation hearing, the court determined that Holman had violated the terms of 

his probation, and sentenced him to serve 36 months for the burglary conviction and 12 

months for the breaking and entering conviction and ran the sentences consecutively. 

On appeal in three assignments of error, Holman argues that the court abused its 

discretion by failing to order a competency assessment, that his trial counsel was 

ineffective for failing to request a competency assessment, and that the court failed to 

make the proper findings before imposing consecutive sentences. For the reasons that 

follow, we affirm Holman’s convictions but remand for resentencing. 

{¶2} In April 2010 in CR-10-535678, Holman pleaded guilty to fifth-degree 

breaking and entering in violation of R.C. 2911.13(A). Prior to sentencing, Holman was 

arrested on new charges in CR-10-537311. At the sentencing hearing for 

CR-10-535678, Holman orally moved the court to withdraw his guilty plea. After the 

court discussed the motion and circumstances of the case with Holman and his counsel, 

the court granted the motion and Holman was referred to the court psychiatric clinic to 

determine his eligibility for transfer to the mental health docket. 
{¶3} In CR-10-537311, Holman was indicted on one count of burglary, a 

second-degree felony, with notice of prior conviction and repeat violent offender 

specifications. He was also charged with fifth-degree theft and fifth-degree vandalism. 

{¶4} In July 2010, both cases were transferred to the mental health docket. 

Holman was appointed a defense attorney experienced in representing defendants with 

mental health issues. On July 27, 2010, Holman pleaded guilty in both cases: in 

CR-10-535678 to breaking and entering as indicted, and in CR-10-537311 to third-degree 

burglary, a lesser offense as amended, with the remaining theft and vandalism counts 

nolled. Holman was referred to the court psychiatric clinic for a mitigation of penalty 

report and sentencing was scheduled for August 2010. The trial court sentenced Holman 

to three years community control sanctions including supervision by the adult probation 

department with a period of time at an inpatient substance abuse treatment facility. 

{¶5} Holman appeared in court for a probation revocation hearing in May 2012. 

Holman’s probation officer alleged that Holman failed to complete a court ordered drug 

rehabilitation program. He also missed appointments with his doctor and his case 

manager. There was some discussion by Holman’s attorney that Holman had stopped 

taking his medication that might have been the cause of his failure to comply with the 

terms of his probation. The court extended his probation but in October 2012, Holman 

was again before the court for violating the terms of his probation. Holman’s probation 

officer this time asserted that he had reason to believe that Holman was at times using 
illegal drugs and that his mental health was deteriorating. Again, the court continued 

Holman’s probation and ordered him additional treatment at an inpatient facility. 

{¶6} Two weeks later, Holman returned to the courtroom again for violating the 

terms of his probation. His probation officer told the court that Holman had threatened 

to kill various people and himself. Holman’s counsel advised the court that Holman was 

bipolar, had a low IQ, and did not appear to understand that the termination of his 

probation could result in a prison sentence. The court found that Holman was unwilling 

to comply with the terms of his probation and sentenced him to 36 months for the 

burglary and 12 months for breaking and entering, to run consecutive to each other. 

{¶7} In Holman’s first assigned error he argues that the trial court abused its 

discretion by not ordering a competency assessment. Holman argues that he was 

“confused” by his sentence and lacked a clear understanding of the length of time he 

potentially faced once his sentence was imposed. Holman also asks this court to equate 

his low IQ, mental health, and substance abuse issues with an obvious need to have his 

competency assessed. Such a finding, however, is not supported by law. 

{¶8} “The issue of a defendant’s competency to participate in probation revocation 

proceedings may be raised by the court or defendant, and the decision to hold a 

competency hearing must be made on a case-by-case basis in the exercise of the sound 

discretion of the trial court.” State v. Qualls, 50 Ohio App.3d 56, 552 N.E.2d 957 (10th 

Dist. 1988), paragraph one of syllabus. In a probation hearing, a defendant has a due 

process right to a competency hearing when there is a substantial basis for the suggestion 
that appellant is incompetent. State v. Bell, 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th 

Dist. 1990), citing Qualls at 58. 

{¶9} Incompetency is defined as a defendant’s inability to understand the nature 

and objective of the proceedings or presently assist in his defense. State v. Mangus, 7th 

Dist. Columbiana No. 07 CO 36, 2008-Ohio-6210,  66. Incompetency is not equated 

with mere mental or emotional instability or even with outright insanity. State v. Were, 

118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263,  47. A defendant may be 

emotionally disturbed and still be capable of understanding the charges against him and of 

assisting his counsel. Mangus, citing State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 

1016 (1986). 

{¶10} In State v. Brank, 5th Dist. Tuscarawas No. 2006P090053, 2007-Ohio-919, 

the trial court placed the appellant under community control sanctions following a 

conviction for gross sexual imposition. Under the terms of his community control, the 

appellant was not to have any contact with children. The state moved for revocation of 

the appellant’s community control following an incident where the appellant tried to take 

an unaccompanied child on a walk. After a hearing, the court determined that the 

appellant had violated his probation and revoked the appellant’s community control 

sanction. On appeal, the appellant claimed that the trial court abused its discretion by 

not ordering a competency evaluation after his conduct in jail and at his probation 

revocation hearing suggested that he suffered from mental health issues. While in jail, 

the appellant appeared disoriented and claimed to not know his own name. Id. at  24. 
At his probation revocation hearing, he told the court he did not understand the charges 

against him and that he was afraid. Id. at  34-40. The court specifically concluded 

that the appellant’s competency was not at issue pursuant to R.C. 2945 where the 

“testimony presented by the [s]tate was so clear and so disconnected from appellant’s 

ability to assist his counsel in defending him.” The Fifth District upheld this judgment 

finding that the trial court did not abuse its discretion by failing to hold a competency 

hearing. Id. at  45. 

{¶11} Likewise in Qualls, the appellant argued that the trial court erred by 

revoking his probation where there existed substantial evidence casting doubt on his 

competency. Similar to the case at bar, the appellant in Qualls did not raise the issue of 

his competency to participate in, and understand, the proceedings and their result. He 

argued that the court should have ordered a competency evaluation because it was 

obvious that he suffered from mental illness. Also like Holman, he argued that his 

probation violations were a result of his mental illness. Id. at 58. The reviewing court 

rejected the argument that the court should have ordered a competency evaluation and 

subsequent hearing. The trial court had no duty to perform a competency evaluation 

where it was clear from the record that at the probation hearing the appellant was apprised 

of the grounds upon which his probation was being revoked, had the assistance of 

counsel, and the record clearly demonstrated that the appellant was able to follow the 

dialogue during the hearing and was cognizant of the reasons for his arrest. Id. 

Additionally the court stated, “[w]hen requested, a competency hearing may be held in the 
sound discretion of the trial court, [appellant] did not request a competency hearing and 

the record reflects no evidence suggesting that it was not within the sound discretion of 

the trial court not to conduct one.” Id. 

{¶12} While it is clear from the record that Holman suffers from mental health and 

substance abuse issues, neither Holman’s attorney, probation officer nor the court raised 

the issue of competency and requested that an evaluation and competency hearing be 

held. Holman had the wherewithal to request that the court withdraw his initial guilty 

plea, discuss his case with his appointed counsel, inform the court regarding his 

medications, and answer the court’s questions during the plea colloquy. The trial court 

properly acknowledged Holman’s mental health issues by appointing trial counsel 

experienced in representing clients with mental health issues and also by placing 

Holman’s case on the mental health docket. No further action by the court was required. 

 We overrule Holman’s first assigned error. 

{¶13} Holman’s second assignment of error is likewise without merit. He argues 

that his counsel was ineffective because his counsel failed to raise the issue of 

competency at his final probation revocation hearing. 

{¶14} In order to prevail on an ineffective assistance of counsel claim, a defendant 

must show (1) his counsel was deficient in any aspect of his representation, and (2) the 

defendant must show that the deficient performance prejudiced the defense. Strickland 

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 
{¶15} Holman has failed to demonstrate how his counsel’s failure to request a 

competency assessment was deficient and what prejudice he suffered as a result. 

Holman argues that his counsel was in the position to closely observe him, and that he 

should have been aware that Holman was suffering new symptoms of his mental illness 

that may have been causing him to violate his probation by threatening to harm himself 

and others. As discussed when addressing Holman’s first assignment of error, having 

mental illness does not automatically trigger questioning one’s competency. 

{¶16} Holman also fails to demonstrate that, had his counsel raised the issue of 

competency, it would have altered the outcome of his probation revocation hearing. On 

several occasions the trial court continued Holman’s probation and ordered additional 

mental health treatment. The court was told that Holman was not taking his medication 

and was suspected of using illegal drugs. Based on all the information the court had 

before it and Holman’s history with violating the terms of his probation, we are not 

persuaded that the trial court would have ordered a competency assessment had counsel 

requested as much. We therefore overrule this second assignment of error. 

{¶17} In his third and final assigned error, Holman argues that the court failed to 

make the proper findings before imposing consecutive sentences for his burglary and 

breaking and entering convictions. 

{¶18} Under R.C. 2929.14(C)(4), a trial court may impose consecutive multiple 

prison terms for convictions on multiple offenses where the court makes the necessary 

statutory findings. This court has interpreted the statute to require that the trial court to 
make separate and distinct findings apart from any findings relating to the purposes and 

goals of criminal sentencing. State v. Nia, 8th Dist. Cuyahoga No. 99387, 

2014-Ohio-2527,  13. See also State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453. 

{¶19} R.C. 2929.14(C)(4) states: 

If multiple prison terms are imposed on an offender for convictions of 

multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the offender 

and that consecutive sentences are not disproportionate to the seriousness of 

the offender’s conduct and to the danger the offender poses to the public, 

and if the court also finds any of the following: 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed 

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or 

was under post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or 

more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender’s conduct. 

(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶20} A review of the record demonstrates that the trial court failed to make all 

the necessary findings required by the statute. The court stated: 

COURT: You’ve indicated you want your sentence, and you can have 

it. The Court’s going to sentence you to 36 months, which is 

the maximum on the felony of the third degree; and that’s 

consecutive to a one-year sentence on the felony of the fifth 
degree. That’s the maximum I can sentence you to in order to 

protect the public against these potential threats. 

The sentencing transcript reflects that the court found that the public needed to be 

protected, fulfilling the first requirement of the statute. The third requirement is 

satisfied because Holman was under community control sanction at the time he was 

sentenced. However, the court did not make the second required finding under the 

statute. We therefore vacate the sentence and remand the case for the trial court to 

consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and if 

so, to make the required findings on the record and incorporate those findings into the 

court’s sentencing entry. See State v. Bonnell, Slip Opinion No. 2014-Ohio-3177. 

 

{¶21} Conviction affirmed; cause reversed in part and remanded to the trial court 

for resentencing consistent with this opinion. 

It is ordered that appellant and appellee share the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas 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 resentencing. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 
__________________________________________ 

MELODY J. STEWART, JUDGE 

KENNETH A. ROCCO, P.J., CONCURS; 

KATHLEEN ANN KEOUGH, J., CONCURS 

IN JUDGMENT ONLY