[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, 2018ATTORNEY 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 Ha rian (“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 fel ony 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 vi olation of R.C. 2913.02(A)(1); a nd Counts 6 and 7, aggravatedmenacing, first-degree misdemeanors in viola tion 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 specifi cations; 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 viol ation of R.C. 2923.13(A)(2). Counts 1, 3, 4, and 6 were nolled. {¶4} The trial court held a sentencing hear ing on July 11, 2017, during which it sentenced appellant in both criminal cases . In CR-16-606599-A, the trial c ourt sentenced appellant to a prison term of four years: four years on C ount 2, six months on Count 5, six months on Count 6, and six months on Count 7. The trial court or dered the counts to run concurrently to one another. In CR-16-607603-A, the tria l 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. Th e trial court ordered

the counts to run concurren tly to one another. {¶5} The trial court ordered a ppellant 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 pr o tunc sentencing entry in CR-16-607603-A on July 20, 2017. {¶6} On September 9, 2017, appella nt 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 consolidat ed 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 requirement s 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 re quire 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 i ssue 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 mandatorycompetency hearing is a harmless error where the record fails to reveal sufficient indicia of incompetency.” Bock at 110. In this case, the state argu es 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 asser tion 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 c ounsel, presented an argument in support of his request, and inquired about the basis for the firearm specification with whic h he was charged. The state argues that appellant’s conduct during pretrial proceedings “indi cates that [a]ppellant knew and understood what he was being charged with and [t he] ramifications.” A ppellee’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 becau se the record reveals sufficient indicia of incompetency. In support of his argument , appellant emphasize s 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 compet ency evaluation, and that he su ffered a “mental breakdown” that caused him to relapse after being sobe r for almost one year. (Tr. 56-57.) {¶14} After reviewing the record, we find not hing 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 refere nce to appellant’s competency except for the July 6, 2016 journal entry in CR-16-606599-A refe rring him for a psychological evaluation. However, the trial court discu ssed the court psychiatric clinic ’s report during the January 6, 2017pretrial hearing. The trial court explained th at the report was seven pa ges long and concluded that appellant was “just fine[.]” (Tr. 6.) Th e 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 ineligib le for the mental health docket. The trial court explai ned, presumably referencing the findings set forth in the court psychiatric clinic’s report, “I unde rstand 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 paranoi d 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 defe ndant eligible for the mental health docket. (Tr. 5-6.) Th e trial court further explained th at 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 represen t appellant and stated that it would not have a problem referring appellant to the court psychiat ric clinic for another evaluation “if [appellant’s] new counsel be lieves 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 appe llant’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 whethe r appellant was, in fact, compet ent 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 pretri al hearing do not manifest a level of incompetency. In suppor t of his request for new counsel, appellant assert ed, “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 expl ained that he believed there was a

conflict of interest becau se counsel had previously told him th at the state had not offered a plea, but counsel asserted during the pret rial hearing that there have been offers made by the state. Appellant also inquired about the basis for the fi rearm 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. Appe llant’s first assignment of

error is overruled. B. Guilty Plea {¶21} In his second assignment of error, appe llant 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 th e penalties he faced as a result of pleading guilty. {¶22} Before accepting a guilty plea, a trial cour t 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 noncons titutional rights. Clark at ¶ 30. “Substantial compliance means that under the totality of the circumstances the defenda nt 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 prio r 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, appe llant faced a possible sentence of two to eight years in prison. (Tr. 30.) The prosecutor advised the trial cour t that the robbery count contained a notice of prior conviction specification. Thereafter, the tr ial court explained, “[y] ou have 2 specifications on count 2 of this indictment, Mr . Harian. One is a notice of pr ior 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 require s the imposition of a prison term.” (Tr. 31.)

Defense counsel asserted that the prison term was “non-probationa ble” but not mandatory. (Tr.32.) The trial court explaine d, “[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 a ppellant and th e trial court: THE COURT: Do you understand that? [APPELLANT]: Well — THE COURT: It means that you’re goin g to prison. That’s what it means. [APPELLANT]: Yes, I understand. (Tr. 32.) The trial court fu rther 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 advise d appellant that by pleading guilty in CR-16-607603-A to robbery with a notice of prior conviction specifi cation, appellant was re quired 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 unawa re 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. Defens e counsel acknowledged during the sentencing hearing that the robbery counts to which appellant pled guilty we re nonprobationable due to the underlying notice of prior conviction specifications. Knowing th at the robbery offenses were nonprobationableand that he was “going to pr ison,” appellant knowingl y, intelligently, and voluntarily pled guilty. Accordingly, appellant’s second assignment of error is overruled.

III. Conclusion {¶27} After thoroughly reviewing the record, we fi nd that the trial court’s failure to hold a competency hearing was harmless error and that appellant knowingl y, intelligently, and voluntarily entered his guilty pleas. {¶28} Judgment affirmed. It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable 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. Th e defendant’s convictions having been affirmed, any bail pending appeal is ter minated. 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 Appella te Procedure.

FRANK D. CELEBREZZE, JR., JUDGE MELODY J. STEWART, P.J., and MARY J. BOYLE, J., CONCUR