[Cite as State v. Garber, 2022-Ohio-3770.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-21-018

Appellee Trial Court No. 21-CR-147

 

v.

Christopher L. Garber DECISION AND JUDGMENT

Appellant Decided: October 21, 2022

* * * * *

Beth A. Tischler, Sandusky County Prosecuting Attorney, and

Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

* * * * *

OSOWIK, J.

{¶ 1} Defendant-appellant, Christopher L. Garber, appeals the October 7, 2021 

judgment of the Sandusky County Court of Common Pleas, convicting him of 

importuning and sentencing him to nine months in prison. For the following reasons, we 

affirm the trial court judgment.
2.

I. Background

{¶ 2} On August 9, 2021, Christopher Garber entered a plea of guilty to one count 

of importuning, a violation of R.C. 2907.07(D)(2)(f), a fifth-degree felony. The trial 

court accepted Garber’s plea, made a finding of guilty, and continued the matter for 

sentencing. On October 6, 2021, the court sentenced Garber to nine months in prison, 

five years’ mandatory postrelease control, and court costs, and designated Garber a Tier 1 

sexual offender. Garber’s conviction and sentence were memorialized in a judgment 

journalized on October 7, 2021. Garber appealed. He assigns the following error for our 

review:

Counsel rendered ineffective assistance of counsel by his failure to 

request a competency evaluation on a client with obvious and known signs 

of intellectual delays.

II. Law and Analysis

{¶ 3} In his sole assignment of error, Garber claims that trial counsel was 

ineffective for failing to request a competency evaluation. He argues that he has known 

intellectual delays and he exhibited confusion during his plea hearing, which should have 

signaled to a reasonable attorney that he did not understand the full extent of his plea.

{¶ 4} The state responds that Garber was not incompetent. It maintains that 

Garber had sufficient present ability to consult with his lawyer with a reasonable degree 

of rational understanding and had a factual understanding of the proceedings against him.
3.

He followed along with the trial court, answered clearly and coherently, appropriately 

consulted with counsel, and affirmed that he understood his plea and the rights he was 

waiving. While Garber consulted with counsel during the hearing, the state submits that 

this occurred during times when anyone unfamiliar with the court system or legalese may 

have had questions, and Garber was given adequate time for his attorney to answer his 

questions. The state insists that while Garber may have had some intellectual disabilities 

and past mental treatment, the record demonstrates that he was able to think clearly, was 

able to consult with counsel, and understood the nature and objective of the proceedings.

{¶ 5} The state also contends that counsel was not ineffective for failing to seek a 

competency evaluation because he met with Garber on multiple occasions, discussed the 

issue of competency with Garber, and concluded that Garber was able to make a 

knowing, intelligent, and voluntary waiver of his rights and enter a plea. The state 

maintains that counsel was in the best position to determine whether Garber’s 

competence was, or could be, an issue. 

{¶ 6} Properly licensed Ohio lawyers are presumed competent. State v. Banks, 9th 

Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. In order to prevail on a claim of 

ineffective assistance of counsel, an appellant must show that counsel’s conduct so 

undermined the proper functioning of the adversarial process that the trial court cannot be 

relied on as having produced a just result. State v. Shuttlesworth, 104 Ohio App.3d 281, 

287, 661 N.E.2d 817 (7th Dist.1995). To establish ineffective assistance of counsel, an 
4.

appellant must show “(1) deficient performance of counsel, i.e., performance falling 

below an objective standard of reasonable representation, and (2) prejudice, i.e., a 

reasonable probability that, but for counsel’s errors, the proceeding’s result would have 

been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 

204, citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984). “A reasonable probability is a probability sufficient to undermine confidence 

in the outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).

{¶ 7} “A defendant is incompetent if he ‘is incapable of understanding the nature 

and objective of the proceedings against [him] or of assisting in [his] defense.’” State v.

Ingram, 8th Dist. Cuyahoga No. 107587, 2019-Ohio-2438, ¶ 6, quoting R.C. 2945.37(G). 

Under R.C. 2945.37(B), the court, prosecutor, or defense in a criminal action may raise 

the issue of the defendant’s competence to stand trial. But a defendant is rebuttably 

presumed to be competent. R.C. 2945.37(G). A competency determination is necessary 

only when the defendant’s competence is in doubt. State v. Lawson, 165 Ohio St.3d 445, 

2021-Ohio-3566, 179 N.E.3d 1216, ¶ 48, citing Godinez v. Moran, 509 U.S. 389, 401, 

113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), fn. 13. The burden of rebutting the presumption 

of competence is on the party who challenges competence. State v. Jordan, 101 Ohio 

St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 28, citing State v. Scott, 92 Ohio St.3d 1, 4, 

748 N.E.2d 11 (2001).
5.

{¶ 8} To prevail on a claim that counsel was ineffective for failing to seek a 

competency evaluation, the defendant “must show that his counsel failed to perform an 

adequate investigation of his possible incompetence.” Lawson at ¶ 101. Counsel will not 

be found ineffective for failing to request a competency evaluation “when the defendant 

does not display sufficient indicia of incompetency to warrant a competency 

hearing.” Id. at ¶ 95, citing State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 

N.E.2d 1017, ¶ 41. 

{¶ 9} Moreover, to show prejudice for purposes of a claim of ineffective 

assistance, the defendant must show that there is a reasonable probability that an 

evaluation “‘would have revealed that he was incompetent to stand trial.’” Id. at ¶ 104, 

quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir.1988). A defendant will be 

presumed competent to stand trial or enter a plea where he has “sufficient present ability 

to consult with his lawyer with a reasonable degree of rational understanding” and “has a 

rational as well as factual understanding of the proceedings against him.” State v. Bryant, 

6th Dist. Lucas No. L-08-1138, 2009-Ohio-3917, ¶ 8, citing Dusky v. United States, 362 

U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

{¶ 10} Here, the record indicates that Garber graduated from high school and that 

he could read, write, and understand the English language. However, defense counsel did 

acknowledge—and the PSI indicates— that Garber has “intellectual challenges.” 

Counsel stated that he talked with Garber about “a competency issue or NGRI issue,” but 
6.

that Garber had elected to enter a plea, which counsel felt he could do knowingly, 

intelligently, and voluntarily:

I’ve had the opportunity to meet with [Garber] on more than one 

occasion, including yesterday when I went and visited him up in Toledo, 

and we’ve discussed a lot of matters. Of course, [Garber] is – has some 

intellectual challenges, but we discussed waiver of rights. We had a copy 

of the plea form. I read it to him. He under – I’ve explained to him the 

penalties, possibility of prison time, the sexual registry information. His 

parents participated in that meeting. I believe that he understands what he –

what he’s doing. We had talked about whether there was a competency 

issue or NGRI issue, issues of entrapment and suppression of the search 

warrants, we discussed these issues. I believe that he understands them. 

He believe – I believe that he can make intelligent, knowing and voluntary 

waiver of his rights and enter a plea.

{¶ 11} Moreover, there were two instances during the plea hearing where Garber 

expressed confusion: (1) when the court read the name of the offense, the degree of the 

offense, and the revised code provision for the offense, and asked Garber if he wished to 

enter a plea of guilty, and (2) when the court asked Garber if any promises were made in 

exchange for his plea. 
7.

{¶ 12} As to Garber’s intellectual disabilities, “[a] trial court may not find a 

defendant incompetent to stand trial or plead guilty solely because he suffers from a 

mental illness or a learning or intellectual disability.” State v. Moore, 8th Dist. Cuyahoga 

No. 108962, 2020-Ohio-3459, ¶ 41, citing State v. McMillan, 2017-Ohio-8872, 100 

N.E.3d 1222, ¶ 29 (8th Dist). A defendant suffering from an emotional, mental, or 

learning disability “may still possess the ability to understand the charges and 

proceedings against him or her and be able to assist in his or her defense.” Id. “The test 

for competency focuses entirely on the defendant’s ability to understand the meaning of 

the proceedings against him and his ability to assist in his own defense, which can be 

satisfied regardless of the defendant’s mental status or IQ.” Id., citing McMillan at ¶ 29. 

See e.g., State v. Beck, 1st Dist. Hamilton No. C-020432, 2003-Ohio-5838, ¶ 27 (finding 

defendant competent despite low IQ). Courts recognize that defense counsel “‘is in the 

best position to evaluate a client’s comprehension of the proceedings.’” Lawson at ¶ 64,

quoting Stanley v. Cullen, 633 F.3d 852, 861 (9th Cir.2011), quoting Hernandez v. Ylst, 

930 F.2d 714, 718 (9th Cir.1991).

{¶ 13} Here, counsel met with Garber and evaluated his ability to comprehend the 

proceedings, and he determined that Garber was able to render a knowing, intelligent, and 

voluntary plea. Garber was not incompetent merely because he suffers from an 

intellectual disability.
8.

{¶ 14} As to Garber’s confusion during the plea colloquy, Garber maintains that 

this was a “huge red flag” signifying that Garber did not know “what his plea was to be.” 

We do not interpret that Garber was confused as to “what his plea was to be.” Rather, we 

interpret that Garber became confused when the charge, count, offense level, and statute 

number—down to the subsection—were read together: 

The Court: And it states here in this document in the opening 

paragraph that you do desire to enter a plea of guilty to the crime of 

Importuning in Count 1 of the Indictment, and that is a fifth degree felony 

and is in violation of Revised Code 2907.07(D)(2)(F)(3). Is that what you 

desire to do, sir?

[Garber]: Um, I don’t under—

[Defense Counsel]: He’s asking are you willing to plead guilty to 

this charge, the importuning, that F5? That’s the offense, that’s the Code 

Section.

THEREUPON, the Defendant conferred with [defense counsel].

Garber spoke with counsel, and after counsel explained what the court meant, Garber 

confirmed his desire to enter a plea.

[Defense Counsel]: You got – you have to tell him whether or not 

you’re willing to plead guilty to the charge of the importuning, yes.

[Garber]: Yes. I’m willing to –
9.

The Court: That –

[Garber]: -- plead guilty.

The court confirmed that Garber understood.

The Court: Okay. So you do wish to plead guilty to that crime?

[Garber]: Yeah.

{¶ 15} We disagree that this exchange required trial counsel to seek a competency 

evaluation. To the contrary, the dialogue between Garber and the court demonstrates that 

Garber understood the objective of the proceedings and the nature and effect of his plea. 

Garber was candid with the trial court when he needed clarification and was given the 

opportunity to consult counsel. 

{¶ 16} Finally, as to Garber’s confusion when the court asked him whether any 

promises had been made to him regarding the plea “other than what are written in this 

document,” Garber responded that promises had been made to him. Counsel told the 

court that Garber was becoming confused and was permitted time to confer with him. 

After Garber conferred with counsel, the court again addressed Garber to ensure that 

Garber meant that the only promise that had been made to him was what was reflected in 

the written plea agreement itself:

The Court: Well, let me ask you this; there were three charges you 

were – you – you – three counts, right, of this Indictment?

You had three charges against you; is that right?
10.

[Garber]: Yeah.

The Court: Okay. Do you understand that?

[Garber]: Yeah, I understand that.

The Court: And by you pleading to one of them, the Prosecution’s 

willing to say, okay, you plead to one, we’re going to dismiss the other two. 

Do you understand that?

[Garber]: Yes, Your Honor.

The Court: Okay. And so that is – are there any other deal or 

conditions that you believe exist?

[Garber]: No, Your Honor.

The Court: No, okay. All right, we’ll move on then. Do you have 

any questions about that?

[Garber]: No, I’m good.

{¶ 17} Garber’s responses did not demonstrate a failure to comprehend the 

objective of the proceedings or nature and the effect of the plea agreement. His initial 

confusion was understandable—a promise had been made to him (i.e., that in exchange 

for his plea to Count 1, the remaining counts would be dismissed at sentencing). The 

court simply clarified with Garber that no promises had been made other than what was 

detailed in the plea agreement. This exchange did not evidence that Garber was 

incompetent and did not require trial counsel to seek a competency evaluation.
11.

{¶ 18} Finally, Garber verified that he was entering his plea on his own free will, 

he was not being forced to enter his plea, and he understood the contents of the written 

plea form. He also confirmed for the court that he understood the proceedings:

The Court: Now is there anything that’s making it difficult for you 

to understand what’s happening here today?

[Garber]: No, Your Honor.

{¶ 19} We conclude that Garber’s interaction with the trial court at the plea 

hearing evidenced that he had sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding and had a rational and factual understanding 

of the proceedings against him. Counsel performed an adequate investigation of his 

possible incompetence and was not ineffective for failing to request a competency 

evaluation. Accordingly, we find Garber’s assignment of error not well-taken.

III. Conclusion

{¶ 20} Garber’s intellectual disability, on its own, did not necessitate a 

competency hearing. Moreover, his dialogue with the court during the plea hearing did 

not demonstrate that he was incapable of understanding the nature and objective of the 

proceedings against him or of assisting in his defense. As such, trial counsel was not 

ineffective for failing to request a competency evaluation. We find Garber’s sole 

assignment of error not well-taken.
12.

{¶ 21} We affirm the October 7, 2021 judgment of the Sandusky County Court of 

Common Pleas. Garber is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________

JUDGE

Gene A. Zmuda, J. 

____________________________

Myron C. Duhart, P.J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.