[Cite as State v. Edwards, 2019-Ohio-4979.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 108220 

 v. : 

 

DAVID EDWARDS, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: December 5, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-18-628743-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Steven N. Szelagiewicz, Assistant 

Prosecuting Attorney, for appellee. 

James J. Hofelich, for appellant. 

MARY J. BOYLE, P.J.: 

Defendant-appellant, David Edwards (“Edwards”), appeals his guilty 

plea and sentence. He raises three assignments of error for our review: 
1. The trial court erred when it accepted appellant’s plea without 

conducting the competency hearing required by R.C. 

2945.37(B). 

2. Appellant’s plea of guilt to count thirteen was not knowing, 

voluntary, and intelligent as he did not waive his right to a grand 

jury. 

3. The trial court’s sentence of 21 years is contrary to law. 

Finding no merit to his assignments of error, we affirm. 

I. Procedural History and Factual Background 

On June 8, 2018, the Cuyahoga County Grand Jury indicted Edwards 

for eight counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first 

degree; three counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), 

felonies of the third degree; and one count of kidnapping in violation of R.C. 

2905.01(A)(4), a felony of the first degree. All of the counts for rape and gross sexual 

imposition contained a sexually violent predator specification, and the count for 

kidnapping contained a sexual motivation specification and a sexually violent 

offender specification. Two of the rape counts, three of the gross sexual imposition 

counts, and the kidnapping count were based on conduct related to Jane Doe I 

(D.O.B. 5/12/2009) (Counts 1 to 6), and the remaining six counts for rape and one 

count for gross sexual imposition were based on conduct related to Jane Doe II 

(D.O.B. 7/27/2006)(Counts 7 to 13). 

On July 3, 2018, the trial court referred Edwards to the court 

psychiatric clinic to test his IQ, determine his competence to stand trial, and 

determine his eligibility for transfer to the court’s mental health docket. It is not 
clear from the record if the trial court sua sponte sought the competency evaluation 

or if defense counsel or the state requested it. Further, while a report on Edwards’s 

competency, IQ, and eligibility for transfer to the mental health court docket was 

completed, there is no indication in the record that the trial court ever reviewed that 

report or that it was made part of the trial court’s record. 

In November 2018, Edwards agreed to a plea deal offered by the state 

under which the state would amend the indictment and agree to dismiss certain 

counts. Edwards pleaded guilty to six amended counts of rape in violation of R.C. 

2907.02(A)(2), with the sexually motivated predator specifications deleted. One of 

the counts for rape (Count 13) was also amended to “reflect digital penetration” and 

to reflect a third victim, Jane Doe III (D.O.B. 4/28/2010). Edwards also pleaded 

guilty to two amended counts of gross sexual imposition with the sexually motivated 

predator specifications deleted. The trial court nolled the remaining two counts of 

rape, two counts of gross sexual imposition, and one count of kidnapping. 

Prior to pleading guilty and after discussing the amendments to the 

indictment, the state said, “Your Honor, it’s our understanding the defendant will 

plead guilty to those charges, waive all defects in the amendments, especially for 

Count 13.” Edwards’s trial counsel agreed with the state’s characterization of the 

plea deal and indicated that Edwards was accepting the plea to take the life 

specification off the table. After Edwards pleaded guilty, the trial court referred 

Edwards to the court psychiatric clinic for disposition. 
At the sentencing hearing, the trial court stated that it received a 

“psychiatric recommendation regarding disposition report.” That report, authored 

by Dr. James Rodio and dated December 20, 2018, states: 

Due to health concerns, [Edwards] describes his current (Alford Plea 

Bargain) as a practical health matter to avoid ending life in prison from 

several medical issues, despite maintaining his innocence. 

Mr. Edwards’s life report * * * is marked by stressful events and long 

isolation, resulting in drug use and mood changes. He describes recent 

years of improvement when receiving outpatient antidepressant and 

sleep-enhancing medication. 

For a successful clinical approach, Mr. Edwards should certainly 

remain abstinent from the use of alcohol, cannabis, and crack cocaine. 

This would stabilize his body and prevent exposure to negative peers. 

He also benefits from the antidepressant medication, Zoloft, and from 

the sleep-enhancing/mood-lifting medication, Seroquel. 

The report noted that Edwards attended the Bruster Business College and attained 

his state-tested nursing assistant (“STNA”) license and worked as a certified STNA 

for over 20 years, but lost his license after he incurred gross sexual imposition 

charges. 

The trial court sentenced Edwards to nine years on each count of rape 

and five years on each count of gross sexual imposition. It ordered that three of the 

nine-year sentences for rape (Counts 1, 7, and 13) be served consecutive to one 

another and that the remaining terms run concurrently, giving Edwards an 

aggregate prison term of 27 years. The trial court advised Edwards that he was a 

Tier III sex offender and of the reporting requirements. It also advised him that he 

was subject to a mandatory five-year period of postrelease control and imposed 

costs. 
It is from this judgment that Edwards now appeals. 

II. Law and Analysis 

A. Competency Hearing 

In his first assignment of error, Edwards argues that the trial court 

erred when it failed to conduct a competency hearing required by R.C. 2945.37(B). 

“Fundamental principles of due process require that a criminal 

defendant who is legally incompetent shall not be subjected to trial.” State v. Berry, 

72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). “The competency standard for 

pleading guilty is the same as competency to stand trial.” In re K.A., 8th Dist. 

Cuyahoga No. 104938, 2017-Ohio-6979, ¶ 11, citing State v. Bolin, 128 Ohio App.3d 

58, 713 N.E.2d 1092 (8th Dist.1998). As such, an incompetent defendant may not 

agree to and enter a guilty plea. State v. Cruz, 8th Dist. Cuyahoga No. 93403, 2010-

Ohio-3717, ¶ 17. 

A defendant is presumed to be competent and has the burden of 

proving his incompetency by a preponderance of the evidence. State v. Williams, 

23 Ohio St.3d 16, 28, 490 N.E.2d 906 (1986). A defendant is not competent to stand 

trial or plead guilty if he or she “is incapable of understanding the nature and 

objective of the proceedings against [him] or of assisting in [his] defense.” R.C. 

2945.37(G). 

Trial courts must hold competency hearings when the issue is raised. 

R.C. 2945.37. Typically, the failure to hold a competency hearing before accepting 

a defendant’s guilty plea is reversible error. In re K.A. at ¶ 11. Nevertheless, when 
the record does not contain “sufficient indicia of incompetence,” a trial court’s 

failure to hold a competency hearing before trial is harmless error. Berry at 359; 

State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). 

The state agrees that the trial court failed to hold a competency 

hearing as R.C. 2945.37(B) requires, but argues that it was harmless error, citing to 

State v. Harian, 8th Dist. Cuyahoga Nos. 106209 and 106210, 2018-Ohio-2051. 

In Harian, the defendant argued that the trial court erred when it 

failed to conduct a competency hearing. We disagreed, finding no indicia of 

incompetency in the record. Id. at ¶ 14. We stated that while the docket did not 

contain a reference to the defendant’s competency besides the trial court’s referral, 

“the trial court discussed the court psychiatric clinic’s report during” a pretrial 

hearing and that the report concluded that the defendant was competent and the 

defendant was not eligible for the mental health docket. Id. at ¶ 15-16. We also noted 

that the defendant’s new counsel or the defendant did not raise the issue of 

competency again after the trial court discussed the report. Id. at ¶ 17-18. 

After reviewing the record, we find nothing to suggest that Edwards 

was not competent to stand trial or enter into a valid plea. Foremost, the docket’s 

only reference to Edwards’s competency occurred on July 6, 2018, when Edwards 

was referred to the court psychiatric clinic to determine his competence, IQ, and 

eligibility for mental health court. But, it is not clear who requested that referral 

and, after Edwards obtained new defense counsel during the lower court 

proceedings, his counsel never raised the issue of competency. 
Second, the psychiatric report containing the recommendation for 

Edwards’s disposition was part of the trial court’s record. Compare State v. 

Jirousek, 8th Dist. Cuyahoga No. 99641, 2013-Ohio-4796, ¶ 12 (not harmless error 

because no psychiatric report filed with trial court) and State v. Dowdy, 8th Dist. 

Cuyahoga No. 96642, 2012-Ohio-2382, ¶ 15-16 (failure to hold competency hearing 

was not harmless error because “no psychiatric report exists in the record”). At the 

sentencing hearing, the trial court stated that it received the psychiatric 

recommendation on disposition. 

The December 2018 report regarding Edwards’s disposition found 

that Edwards’s life was “marked by stressful events and long isolation, resulting in 

drug use and mood changes,” but that Edwards has improved for years while 

“receiving outpatient antidepressant and sleep-enhancing medication.” The report 

stated that Edwards should remain abstinent from alcohol and drugs and to receive 

antidepressant and sleep-enhancing medications. The report also noted that 

Edwards was a licensed and certified STNA for over 20 years and that Edwards 

stated that he was accepting a plea to avoid dying in prison. 

Like Harian, 8th Dist. Cuyahoga Nos. 106209 and 106210, 2018-

Ohio-2051, the psychiatric recommendation on disposition report in no way 

indicated that Edwards was not competent. Therefore, we find no indicia that 

Edwards was not competent in the record, conclude that the trial court’s failure to 

hold a competency hearing was harmless error, and overrule Edwards’s first 

assignment of error. 
B. Edwards’s Plea 

In his second assignment of error, Edwards argues that he did not 

voluntarily plead guilty to Count 13 (rape of Jane Doe III), which the state amended 

to include a victim not in the original indictment, because he did not waive his right 

to a grand jury. 

Crim.R. 7(D) provides in relevant part: 

The court may at any time before, during, or after a trial amend the 

indictment * * * in respect to any defect, imperfection, or omission in 

form or substance, or of any variance with the evidence, provided no 

change is made in the name or identity of the crime charged. If any 

amendment is made to the substance of the indictment * * * or to cure 

a variance between the indictment * * * and the proof, the defendant is 

entitled to a discharge of the jury on the defendant’s motion, if a jury 

has been impanelled, and to a reasonable continuance, unless it clearly 

appears from the whole proceedings that the defendant has not been 

misled or prejudiced by the defect or variance in respect to which the 

amendment is made, or that the defendant’s rights will be fully 

protected by proceeding with the trial, or by a postponement thereof to 

a later day with the same or another jury. 

We have previously recognized that when the state amends an 

indictment to identify unnamed victims, a defendant is not entitled to have those 

counts resubmitted to the grand jury. See State v. Mitchell, 8th Dist. Cuyahoga No. 

88977, 2007-Ohio-6190, ¶ 40-41 (because the state only amended the victims’ 

names, there was “no change to the substance of the crime charged,” and pretrial 

discovery provided to the defendant reflected the identity of the victims, defendant 

was not entitled to have the charges resubmitted to the grand jury); State v. Henley, 

8th Dist. Cuyahoga No. 86591, 2006-Ohio-2728, ¶ 20-21 (defendant was not 
entitled to have counts resubmitted to the grand jury after state amended indictment 

to change the name of the victim because that change does not alter the substance 

or the identity of the crime charged). 

In those cases, however, it appears that the state only amended the 

indictment to actually identify the Jane Does. But in this case, the state entirely 

changed Count 13 to identify a new victim and different conduct than was originally 

charged in that count. Therefore, unlike Mitchell and Henley, the state’s 

amendment in this case changed the actual victim (and the underlying conduct) 

charged in Count 13. 

Nevertheless, in State v. Johnson, 8th Dist. Cuyahoga Nos. 81692 and 

81693, 2003-Ohio-3241, we held that the trial court did not err in allowing the state 

to amend the indictment to substitute the name of a different victim without 

resubmitting the count to the grand jury. We stated that because the name of the 

victim “is not an essential element of the crime, the name of the victim is not 

required in the indictment. [State v. Owens, 51 Ohio App.2d 132, 366 N.E.2d 1367 

(9th Dist.1975).] * * * Johnson was not prejudiced by the amendment because he 

previously received discovery from the State providing him the correct name of the 

victim.” Id. at ¶ 20; see also State v. Davis, 8th Dist. Cuyahoga No. 90050, 2008-

Ohio-3453, ¶ 24 (“We find that it was not error for the court to amend the indictment 

to include Warren Williams as a victim of count one, as the victim’s identity is not 

an element of burglary, and appellant was aware that Warren Williams was a victim 

in the associated assault charge.”). 
We reach the same conclusion in this case. We find that the 

amendment to Count 13 did not alter an essential element of the crime charged and 

that Edwards suffered no prejudice. In fact, through counsel, Edwards agreed to the 

amendment before voluntarily pleading guilty. At the plea hearing, the state said 

that it understood that Edwards would plead to the amended charges and “waive all 

defects in the amendments, especially for Count 13 * * * in consideration of not 

reindict[ing] a separate case involving that victim.” Upon inquiry from the trial 

court, Edwards’s counsel agreed with the state’s characterization of the plea 

agreement as well as the fact that Edwards was accepting the plea to take the life 

specification off the table. Further, the state points out in its brief that Edwards 

received discovery related to Jane Doe III. Therefore, Edwards did not suffer 

prejudice as a result of the amendment. 

Accordingly, we overrule Edwards’s second assignment of error. 

C. Edwards’s Sentence 

In his third assignment of error, Edwards argues that his 27-year 

sentence was contrary to law and not clearly and convincingly supported by the 

record and specifically challenges his consecutive sentences.1

Felony sentences are reviewed under the standard provided in R.C. 

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 

 1 In his appellate brief, Edwards states that his “21-year sentence is contrary to 

law;” however, his aggregate sentence was actually 27 years, comprised of three nine-year 

terms, which the trial court ran consecutive to one another but concurrent to the 

remaining terms of imprisonment. 
1231, ¶ 16. A reviewing court may overturn the imposition of consecutive sentences 

only if it clearly and convincingly finds that either (1) “the record does not support 

the sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is 

otherwise contrary to law.” Before a trial court may impose consecutive sentences, 

the court must make specific findings mandated by R.C. 2929.14(C)(4) and then 

incorporate those findings in the sentencing entry. State v. Bonnell, 140 Ohio St.3d 

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The trial court is not required to state its 

reasons to support its findings, nor is it required to give a rote recitation of the 

statutory language. Id. “As long as the reviewing court can discern that the trial 

court engaged in the correct analysis and can determine that the record contains 

evidence to support the findings, consecutive sentences should be upheld.” Id. at 

¶ 29. 

R.C. 2929.14(C)(4) authorizes the court to order consecutive service 

of multiple sentences if consecutive service (1) is necessary to protect the public from 

future crime or to punish the offender; (2) is not disproportionate to the seriousness 

of the offender’s conduct and to the danger the offender poses to the public; and (3) 

the court must find that (a) if the offender committed the offense while awaiting trial 

or sentencing, under community control monitoring, or under postrelease control 

for a prior offense; (b) at least two of the offenses caused harm so great and unusual 

that no single term for any offense adequately reflects the seriousness of the 

offender’s conduct; or (c) the offender’s history of criminal conduct demonstrates 
the necessity of consecutive sentences to protect the public from future crime. State 

v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709, ¶ 6. 

Edwards does not argue that the trial court failed to make the 

required findings before imposing consecutive sentences, but instead argues that a 

review of the record shows that consecutive sentences were not warranted because 

he “was 55 years old at the time of sentencing, took responsibility for his actions by 

accepting a plea[, and] * * * expressed remorse by apologizing to his victims.” He 

argues that the trial court should have run all of his terms of imprisonment 

concurrent to one another. 

We disagree. After hearing from the parents of two of the minor 

victims, the state, Edwards’s trial counsel, and Edwards himself, the trial court 

stated the following at the sentencing hearing: 

First of all, the injuries to the victims, the physical and mental 

conditions, and their age. I mean we have young children all under the 

age of ten. Three victims. 

The psychological harm and the physical harm, the fact that they can’t 

trust anyone, the fact that they won’t trust other people, adults, because 

of your conduct, that’s serious. 

The fact that you were in a position of trust. The fact that your 

relationship with the victims helped facilitate this offense, is a serious 

factor. The fact that you were given access to these children. They were 

your son’s — living with your son, his fiancée, those are all serious 

factors. 

Now you know, you’ve accepted responsibility here and I give you credit 

for that. * * * You saved these three children from having to go through 

a trial, having to testify in front of strangers about what occurred. I 

mean, there’s some redeeming quality to that. 
But then I have to go to your background. When I go to your 

background, the first thing I see is in 2000 you were convicted * * * of 

gross sexual imposition. And you were given a sentence of two years. 

And you were classified as a sexually oriented offender back then. 

In 2008 you were again back in this court for the fact that you didn’t 

verify where you were living and change of address records, and you 

were given a chance at probation[.] 

In 2012 there’s an active warrant out for you for rape. And that’s 

dealing with the third victim. * * * 

And then 2018, this case here, you have three victims. * * * So the fact 

that you had a prior offense of the kid, of touching a child, the fact that 

you were under registration requirements, the fact that you had access 

to these children, are all serious factors to this court and serious to me 

as the sentencing judge. 

The court found that running three of the nine-year terms consecutive to one 

another was necessary to protect the public, punish Edwards, and was not 

disproportionate to the seriousness of his conduct and the danger he posed to the 

public. It also found that “the harm to these young children is so great or unusual, 

that a single term [did] not adequately reflect that seriousness of [Edwards’s] 

conduct” and that Edwards’s “criminal history shows that consecutive terms [were] 

needed to protect the public.” 

Furthermore, while Edwards is right that he accepted responsibility 

for his actions by pleading guilty, a factor that the court acknowledged at the 

hearing, Edwards vehemently denied committing the crimes at the hearing and 

suggested he was only pleading guilty to avoid a life sentence and dying in prison. 

After review of the above, including Edwards’s criminal history, 

which included prior convictions for gross sexual imposition and failure to comply 
with his registration requirements, and the fact that he violated a position of trust to 

commit the crimes against the victims, we find that the record clearly and 

convincingly supports the trial court’s findings and imposition of consecutive 

sentences per R.C. 2953.08(G)(2). Accordingly, we overrule Edwards’s third 

assignment of error. 

Judgment affirmed. 

It is ordered that appellee recover from appellant 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 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending 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. 

 

MARY J. BOYLE, PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

ANITA LASTER MAYS, J., CONCUR