[Cite as State v. Harian, 2018-Ohio-2051.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 106209 and 106210

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

CLARENCE K. HARIAN

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-16-606599-A and CR-16-607603-A 

BEFORE: Celebrezze, J., Stewart, P.J., and Boyle, J. 

RELEASED AND JOURNALIZED: May 24, 2018 
ATTORNEY FOR APPELLANT

Jerome M. Emoff 

Dworken & Bernstein Co., L.P.A. 

1468 West Ninth Street, Suite 135 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Janna R. Steinruck 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

FRANK D. CELEBREZZE, JR., J.: 

{¶1} Defendant-appellant, Clarence Harian (“appellant”), brings this appeal challenging 

guilty pleas he entered in two criminal cases. Specifically, appellant argues that the trial court 

failed to comply with R.C. 2945.37(B) by not conducting a competency hearing and that his 

guilty pleas were not voluntarily entered. After a thorough review of the record and law, this 

court affirms. 

I. Factual and Procedural History 

{¶2} The instant appeal arose from guilty pleas that appellant entered in two criminal 

cases on May 22, 2017. First, in Cuyahoga C.P. No. CR-16-606599-A, appellant pled guilty to 

an amended Count 2, robbery, a second-degree felony in violation of R.C. 2911.02(A)(1), with 

notice of prior conviction and repeat violent offender specifications; Count 5, petty theft, a 

first-degree misdemeanor in violation of R.C. 2913.02(A)(1); and Counts 6 and 7, aggravated 
menacing, first-degree misdemeanors in violation of R.C. 2903.21(A). Counts 1, 3, and 4 were 

nolled. 

{¶3} Second, in Cuyahoga C.P. No. CR-16-607603-A, appellant pled guilty to an 

amended Count 2, robbery, a second-degree felony in violation of R.C. 2911.02(A)(1), with 

notice of prior conviction and repeat violent offender specifications; an amended Count 5, 

abduction, a third-degree felony in violation of R.C. 2905.02(A)(2); and Count 7, having 

weapons while under disability, a third-degree felony in violation of R.C. 2923.13(A)(2). 

Counts 1, 3, 4, and 6 were nolled. 

{¶4} The trial court held a sentencing hearing on July 11, 2017, during which it sentenced 

appellant in both criminal cases. In CR-16-606599-A, the trial court sentenced appellant to a 

prison term of four years: four years on Count 2, six months on Count 5, six months on Count 

6, and six months on Count 7. The trial court ordered the counts to run concurrently to one 

another. In CR-16-607603-A, the trial court sentenced appellant to a prison term of four years: 

four years on Count 2, one year on Count 5, and one year on Count 7. The trial court ordered 

the counts to run concurrently to one another. 

{¶5} The trial court ordered appellant to serve his four-year prison sentence in 

CR-16-607603-A consecutively with his four-year sentence in CR-16-606599-A for an aggregate 

prison term of eight years. The trial court issued a nunc pro tunc sentencing entry in 

CR-16-607603-A on July 20, 2017. 

{¶6} On September 9, 2017, appellant filed the instant appeals challenging his 

convictions. He assigns two errors for review: 

I. The trial court erred in failing to comply with the mandatory requirements of 

R.C. 2945.37(B). 
II. The trial court erred in failing to comply with the requirements of Crim.R. 

11(C)(2)(a) & (b). 

On October 26, 2017, this court consolidated appellant’s appeals. 

II. Law and Analysis 

A. Competency

{¶7} In his first assignment of error, appellant argues that the trial court failed to comply 

with the mandatory requirements of R.C. 2945.37(B) by not conducting a competency hearing 

after referring him for a competency evaluation during pretrial proceedings. 

{¶8} “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). A defendant is “incompetent” if he or she “is incapable of understanding 

the nature and objective of the proceedings against [him or her] or of assisting in [his or her] 

defense.” Id. at 360. 

{¶9} If a defendant’s competency to stand trial “is raised before the trial has commenced, 

the court shall hold a hearing on the issue.” (Emphasis added.) R.C. 2945.37(B). Thus, 

“where the issue of the defendant’s competency to stand trial is raised prior to trial, a competency 

hearing is mandatory.” State v. Bock, 28 Ohio St.3d 108, 109, 502 N.E.2d 1016 (1986). 

{¶10} In this case, it is undisputed that the issue of appellant’s competency was raised 

prior to trial, and that the trial court did not hold a competency hearing as required by R.C. 

2945.37(B). The state acknowledges that the trial court erred by failing to hold a competency 

hearing before accepting appellant’s guilty pleas. The state argues, however, that the trial 

court’s error was harmless. 

{¶11} The Ohio Supreme Court has held that “the failure to hold a mandatory 
competency hearing is a harmless error where the record fails to reveal sufficient indicia of 

incompetency.” Bock at 110. In this case, the state argues that the record fails to reveal 

sufficient indicia of incompetency. The state asserts that the only indicia of incompetency in 

the record was appellant’s assertion that he has been diagnosed with paranoid schizophrenia. 

{¶12} The state contends that the record reflects that appellant was, in fact, competent to 

stand trial and that he understood the nature of the proceedings, the charges against him, and the 

potential penalties he faced for those charges. In support of its argument, the state emphasizes 

that appellant requested new counsel, presented an argument in support of his request, and 

inquired about the basis for the firearm specification with which he was charged. The state 

argues that appellant’s conduct during pretrial proceedings “indicates that [a]ppellant knew and 

understood what he was being charged with and [the] ramifications.” Appellee’s brief at 6. 

{¶13} Appellant, on the other hand, argues that the trial court’s failure to hold a 

competency hearing was not harmless error because the record reveals sufficient indicia of 

incompetency. In support of his argument, appellant emphasizes that CR-16-606599-A was 

originally assigned to the mental health docket, the trial court referred him to the court 

psychiatric clinic for a competency evaluation, and that he suffered a “mental breakdown” that 

caused him to relapse after being sober for almost one year. (Tr. 56-57.) 

{¶14} After reviewing the record, we find nothing suggesting that appellant was 

incompetent to stand trial or enter into a plea. Therefore, any error regarding the trial court’s 

failure to hold a competency hearing is harmless. 

{¶15} The docket in this case contains no reference to appellant’s competency except for 

the July 6, 2016 journal entry in CR-16-606599-A referring him for a psychological evaluation. 

However, the trial court discussed the court psychiatric clinic’s report during the January 6, 2017 
pretrial hearing. The trial court explained that the report was seven pages long and concluded 

that appellant was “just fine[.]” (Tr. 6.) The trial court stated that although appellant’s case 

had initially been assigned to the mental health docket, appellant was found to be ineligible for 

the mental health docket.1 

{¶16} Appellant inquired as to why he was found to be ineligible for the mental health 

docket. The trial court explained, presumably referencing the findings set forth in the court 

psychiatric clinic’s report, “I understand that you can demonstrate that you are able to assist with 

your attorney, that you understand what is going on here and, therefore, they do not find that you 

are eligible for mental health court.” (Tr. 5.) Appellant asserted that he is always on the 

mental health docket and that he has been diagnosed with paranoid schizophrenia. (Tr. 5-6.) 

The trial court stated that the clinic diagnosed appellant with “cocaine use disorder severe” and 

explained that every disorder or diagnosis does not make a defendant eligible for the mental 

health docket. (Tr. 5-6.) The trial court further explained that the clinic “thought [appellant 

was] fine. * * * This report is seven pages long, and they will tell you in detail why they felt that 

you were just fine[.]” (Tr. 6.) 

{¶17} Finally, the trial court assigned new counsel to represent appellant and stated that it 

would not have a problem referring appellant to the court psychiatric clinic for another evaluation 

“if [appellant’s] new counsel believes that [he] should be rediagnosed[.]” (Tr. 6.) 

{¶18} Neither appellant nor his new attorney raised the issue of appellant’s competency 

during the change of plea hearing. Furthermore, there is no indication in the record that 

appellant’s new counsel requested that appellant be referred back to the court psychiatric clinic 

for further evaluation. Had appellant’s new counsel believed that appellant was incompetent or 

 

1

 CR-16-606599-A was assigned to the mental health docket during appellant’s June 3, 2016 arraignment. 
had some reason to question whether appellant was, in fact, competent to proceed, counsel surely 

would have raised the issue before the trial court proceeded with the change of plea hearing. 

See State v. McNeir, 8th Dist. Cuyahoga No. 105417, 2018-Ohio-91, ¶ 27, citing State v. Smith, 

89 Ohio St.3d 323, 330, 731 N.E.2d 645 (2000). 

{¶19} Appellant’s assertions during the January 6, 2017 pretrial hearing do not manifest a 

level of incompetency. In support of his request for new counsel, appellant asserted, “right now 

me and [counsel] did not see eye-to-eye. We have a conflict of interest, so I need — I’d like to 

have another lawyer.”2

 (Tr. 4.) Appellant further explained that he believed there was a 

conflict of interest because counsel had previously told him that the state had not offered a plea, 

but counsel asserted during the pretrial hearing that there have been offers made by the state. 

Appellant also inquired about the basis for the firearm specification with which he was charged: 

“[h]ow can I be charged with a gun if there wasn’t no gun?” (Tr. 10.) 

{¶20} Based on the foregoing analysis, we find that there was a lack of sufficient indicia 

of incompetency in the record. Accordingly, the trial court’s failure to hold a competency 

hearing as required by R.C. 2945.37(B) was harmless error. Appellant’s first assignment of 

error is overruled. 

B. Guilty Plea

{¶21} In his second assignment of error, appellant argues that his guilty plea was not 

voluntarily entered because the trial court failed to comply with Crim.R. 11(C)(2)(a) and (b) in 

advising appellant of the penalties he faced as a result of pleading guilty. 

{¶22} Before accepting a guilty plea, a trial court is bound by the requirements of Crim.R. 

 

2

 Although the trial court referenced a written request for new counsel filed by appellant, this document is not in the 

trial court’s docket or the record before this court. 
11(C)(2). State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 27. 

Crim.R. 11(C)(2)(a) requires a trial court to inform a criminal defendant of the maximum penalty 

for the offense to which he is pleading guilty. 

{¶23} Advising a defendant about the maximum sentence has been determined to be a 

nonconstitutional right. State v. Owens, 8th Dist. Cuyahoga Nos. 100398 and 100399, 

2014-Ohio-2275, ¶ 7, citing State v. McKissic, 8th Dist. Cuyahoga Nos. 92332 and 92333, 

2010-Ohio-62, ¶ 13. Substantial compliance with Crim.R. 11 is sufficient when advising a 

defendant about nonconstitutional rights. Clark at ¶ 30. “Substantial compliance means that 

under the totality of the circumstances the defendant subjectively understands the implications of 

his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 

(1990). 

{¶24} In this case, appellant argues that the trial court failed to sufficiently advise him of 

the effect of pleading guilty to the notice of prior conviction specifications. He appears to argue 

that he did not fully understand that by pleading guilty, he would be sent to prison. Appellant’s 

argument is entirely unsupported by the record. 

{¶25} During the change of plea hearing, the trial court stated that by pleading guilty in 

CR-16-606599-A to robbery, appellant faced a possible sentence of two to eight years in prison. 

(Tr. 30.) The prosecutor advised the trial court that the robbery count contained a notice of 

prior conviction specification. Thereafter, the trial court explained, “[y]ou have 2 specifications 

on count 2 of this indictment, Mr. Harian. One is a notice of prior conviction and the other is a 

repeat violent offender. And just so I’m clear, a notice of prior conviction, that means that this 

is mandatory time. * * * It looks like it requires the imposition of a prison term.” (Tr. 31.) 

Defense counsel asserted that the prison term was “non-probationable” but not mandatory. (Tr. 
32.) The trial court explained, “[n]on-probationable. So it requires a prison term, but the 

prison term doesn’t have to be a mandatory term.” (Tr. 32.) Thereafter, the following 

exchange took place between appellant and the trial court: 

THE COURT: Do you understand that? 

[APPELLANT]: Well — 

THE COURT: It means that you’re going to prison. That’s what it means. 

[APPELLANT]: Yes, I understand. 

(Tr. 32.) The trial court further advised appellant that the notice of prior conviction 

specification means that he “will get prison time. You can’t get probation. And I don’t think 

you were looking for probation on these, because they’re both serious charges.” (Tr. 33.) The 

trial court also advised appellant that by pleading guilty in CR-16-607603-A to robbery with a 

notice of prior conviction specification, appellant was required to go to prison. (Tr. 34.) 

The mere fact that the court did not specifically say “You are ineligible for 

probation” or “This offense requires a mandatory term of prison” will not be fatal 

unless the record clearly indicates that the defendant was unaware that he would 

be sent to prison upon a plea of guilty and he was prejudiced by that fact. The 

test is whether the plea would not have otherwise been made. Nero, 56 Ohio 

St.3d at 108, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163. 

State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio-1796, ¶ 11. 

{¶26} Here, the record reflects that appellant was aware that by pleading guilty, he would 

be sentenced to prison. Defense counsel acknowledged during the sentencing hearing that the 

robbery counts to which appellant pled guilty were nonprobationable due to the underlying notice 

of prior conviction specifications. Knowing that the robbery offenses were nonprobationable 
and that he was “going to prison,” appellant knowingly, intelligently, and voluntarily pled guilty. 

 Accordingly, appellant’s second assignment of error is overruled. 

III. Conclusion

{¶27} After thoroughly reviewing the record, we find that the trial court’s failure to hold a 

competency hearing was harmless error and that appellant knowingly, intelligently, and 

voluntarily entered his guilty pleas. 

{¶28} 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 issue out of this court directing the common pleas 

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

FRANK D. CELEBREZZE, JR., JUDGE 

MELODY J. STEWART, P.J., and 

MARY J. BOYLE, J., CONCUR