[Cite as State v. Farris , 2020-Ohio-134.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals No. E-18-047 Appellee Trial Court No. 2017CR414

v. Bret Farris DECISION AND JUDGMENT Appellant Decided: January 17, 2020

* * * * * Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee. Emil G. Gravelle III, for appellant.

* * * * * OSOWIK, J. {¶ 1} This is an appeal from a June 14, 2018 judgment of the Erie Cou nty Court of Common Pleas, finding appellant guilty pursuant to a negotiated plea agreement of three counts of telecommunications harassment, in violation of R.C. 2 917.21, felonies of the fifth degree, and one count of violation of a protection order, in violation of R.C. 2919.27,2. a misdemeanor of the first degree. In exchange, four additiona l telecommunications harassment counts, five additional protection order violation c ounts, and a misdemeanor menacing charge were dismissed. {¶ 2} Appellant was sentenced to a suspended three-year term of incar ceration, in addition to a five-year period of community control. For the r easons set forth below, this court reverses the judgment of the trial court and remands this case to the trial court for purposes of conducting a compulsory R.C. 2945.37(B) competency hearing regarding appellant’s mental fitness to stand trial. {¶ 3} The record reflects that appellant requested a competency evalu ation, the trial court granted the request, appellant was evaluated by the Court Diagnostic & Treatment Center for both competency to stand trial and not gui lty by reason of insanity assessment purposes, written reports reaching independent medic al opinions adverse to appellant were forwarded to the trial court and reviewed by it, but the trial court erred in failing to subsequently conduct a compulsory R.C. 2945.37 compe tency hearing regarding appellant prior to case disposition. {¶ 4} Thus, although the record reflects that counsel for appellant s ecured a favorable outcome for appellant in the underlying plea agreemen t, appellant is entitled to

have the matter reversed and remanded to the trial court on the above-described procedural basis.3. Appellant, Bret Farris, sets forth the following two assignment s of error: I. The trial court erred when it failed to conduct a competen cy hearing before accepting [appellant’s] plea in violation of [du e process constitutional and statutory requirements]. II. The trial court erred [in ordering] a sentence that was c ontrary to law [by imposing community control outside appellant’s presence ]. {¶ 5} The following undisputed facts are relevant to this appeal. On November 8, 2017, appellant was indicted on 14 counts; seven counts of tele communications harassment, six counts of protection order violations, and one misdemeanor menacing

offense. {¶ 6} On March 26, 2018, a pretrial conference was held. On April 3, 2018, at appellant’s request, the trial court ordered an R.C. 2945.37(B) competency evaluation to be performed for purposes of determining appellant’s legal comp etency to stand trial and to determine whether the defense of not guilty by reason of ins anity may apply to appellant. {¶ 7} The competency evaluation order was necessitated as the trial c ourt was advised that at the time of appellant’s indictment on the insta nt cases, appellant was a patient at an out-of-state mental health treatment facility in response to possible suicidal ideations. Accordingly, the trial court determined that it sho uld not proceed further until appellant’s legal competency to stand trial was ascertained. T he evaluations of appellant4. were completed and submitted to the trial court. They reflecte d appellant to be legally competent to stand trial. {¶ 8} However, on June 14, 2018, without first conducting the R.C. 29 45.37(B) compulsory competency hearing to place the findings pertaining to appellant’s competency on the record and make a formal competency determina tion, the trial court accepted a negotiated plea agreement and disposed of appellant’ s cases. {¶ 9} On June 14, 2018, appellant entered a plea of guilty to three o f the

telecommunications harassment counts and one of the violation o f a protection order counts. In exchange, the remaining ten offenses pending agains t appellant were dismissed. Appellant was sentenced to a five-year term of comm unity control and a suspended three-year term of incarceration. This appeal ensued

. {¶ 10} In the first assignment of error, appellant asserts that the tr ial court committed reversible error when it accepted appellant’s negotia ted pleas and sentenced appellant without having first conducted an R.C. 2945.37(B) com petency hearing. We

concur. {¶ 11} R.C. 2945.37(B) establishes in pertinent part, “In a criminal action in a common pleas court * * * [I]f the issue of [defendant’s compete ncy to stand trial] is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section.” (Emphasis added).5. {¶ 12} Our review of this matter is guided by State v. Miller , 2017-Ohio-7091, 95 N.E.3d 832 (8th Dist.), which is illustrative on the proper han dling of scenarios such as the one present in the instant case. {¶ 13} In Miller , as analogous to the present case, the trial court had ordered that the defendant receive a competency evaluation prior to proceedi ng to trial, the competency evaluation was completed, the written report was for warded to the trial court for review, but then the trial court subsequently accepted a ne gotiated plea agreement without first conducting the requisite R.C. 2945.37(B) competen cy hearing. {¶ 14} Given these circumstances, the Miller court held in relevant part, “An evidentiary hearing is both statutorily and constitutionally re quired when the issue of competency is raised before trial and there are sufficient indi cia of incompetency to call into doubt the competency to stand trial * * * Therefore, the t rial court erred in failing to hold a competency hearing as mandated by R.C. 2945.37(B) before accepting Miller’s guilty pleas.” Miller , ¶ 13-14. Accordingly, the judgment was reversed and the case was remanded to the trial court for purposes of conducting the comp etency hearing prior to

case resolution. {¶ 15} Likewise, we find that the trial court erred in this case in fa iling to hold the mandatory statutory competency hearing prior to accepting the p lea agreement. Accordingly, we find appellant’s first assignment of error well -taken.6. {¶ 16} Having determined that the trial court erred in failing to hold the statutorily mandated competency hearing before accepting appellant’s guilty pleas, we find that the remaining assignment of error is rendered moot as a matter of l aw. {¶ 17} An R.C. 2945.37 competency hearing must be conducted prior to t he trial court’s acceptance of a new proposed plea agreement or prior to proceeding to trial on the 14 originally charged offenses. {¶ 18} On consideration whereof, the judgment of the Erie County Court of Common Pleas is hereby reversed. The case is remanded to the t rial court for further proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment reversed and remanded.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, J. JUDGE CONCUR.

_______________________________ JUDGE This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.