[Cite as State v. Scott, 2022-Ohio-2820.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

ALLEN COUNTY

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 1-21-51

 v.

KENNETH J. SCOTT, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court

Trial Court No. CR 2020 0402

Judgment Affirmed

Date of Decision: August 15, 2022 

APPEARANCES:

Chima R. Ekeh for Appellant

Jana E. Emerick for Appellee
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SHAW, J.

{¶1} Defendant-Appellant, Kenneth J. Scott (“Scott”), appeals the October 

15, 2021 judgment of the Allen County Court of Common Pleas, journalizing his 

conviction after pleading guilty to second-degree felonious assault with a firearm 

specification and having weapons while under disability, a third-degree felony, and

sentencing him to an aggregate indefinite prison term of four to six years on the two 

offenses, consecutive to a three-year mandatory term on the firearm specification.

Background

{¶2} On December 17, 2020, Scott was charged in a two-count indictment 

with the offense of Count 1, felonious assault, in violation of R.C.

2903.11(A)(2)/(D)(1)(a) a second-degree felony, with a firearm specification 

pursuant to R.C. 2941.145(A); and Count 2, having weapons while under disability, 

in violation of R.C. 2923.13(A)(2)/(B), a third-degree felony. Scott pled not guilty 

to the charges at his arraignment.

{¶3} On the morning of trial, September 7, 2021, defense counsel filed a 

“Motion Suggesting the Defendant is Not Competent to Stand Trial,” requesting the 

trial court to order an evaluation, pursuant to R.C. 2945.371, to determine Scott’s 

competency to stand trial. (Doc. No. 62). The trial court then heard the motion, and 

after hearing arguments from both parties and the evidence presented, the trial court 

found Scott competent to stand trial.
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{¶4} The case proceeded with the jury trial. The record reflects the 

prosecution presented testimony and a video recording of the November 1, 2020 

incident depicting Scott’s actions in brandishing and shooting a .22 caliber gun near 

the victim, who was Scott’s first cousin, and the identification of the .22 caliber gun 

as being the same gun which the victim had actually sold to Scott about a week 

before. During an afternoon recess following the testimony of the prosecution’s

witnesses, the parties reached a plea agreement. The trial court recited on the record 

the terms of the plea agreement, under which Scott would be pleading guilty to the 

indictment and, in exchange, the prosecution would agree to make no sentencing 

recommendation. The trial court engaged in a Crim.R. 11 colloquy with Scott. 

When the trial court asked Scott if he had taken any medication within the last fortyeight hours, he responded that he had taken medication. The trial court followed up 

by attempting to inquire about the type of medication and whether the medication

impacted Scott’s ability to understand the plea proceedings, but Scott indicated that 

he did not know what medications he was taking. He then stated that he did not 

have a clear head at that time, and so the trial court indicated that it could not accept 

the guilty plea and that the trial would continue.

{¶5} Meanwhile, the trial court received information from the jail nurse

about the medications being taken by Scott and the court provided counsel with that 

information before the court adjourned for the day. When the trial court reconvened 
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the next day, the record indicates that additional discussion had occurred regarding 

the medications Scott had been taking on a regular basis, the absence of any real 

side effects from those medications, and it was then indicated to the trial court by 

defense counsel that Scott had reported that he was “clear headed” and wished to 

enter the plea deal. (Tr. at 295). In addition to Scott and his counsel signing a

“Negotiated Plea of Guilty” form, the trial court inquired of Scott prior to accepting 

the plea to ensure that he was “clear headed,” and then found after engaging in the 

plea colloquy with Scott that his guilty plea was voluntary and that he had a full 

understanding of the consequences of his plea. (Tr. at 298-310). The trial court 

accepted Scott’s guilty plea, entered findings of guilt according to the plea, and 

ordered a presentence investigation to be completed.

{¶6} On October 15, 2021, a sentencing hearing was held. The trial court 

found that the offenses in Counts 1 and 2 did not merge. The trial court imposed a 

prison term of four to six years on the second-degree felonious assault count, with 

a three-year mandatory prison term for the firearm specification to be served 

consecutive and prior to the indefinite term, and a prison term of eighteen months 

on the third-degree weapons under disability count to be served concurrently with 

the four-year term.

{¶7} Scott now appeals, asserting the following assignments of error for our 

review.
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ASSIGNMENT OF ERROR NO. 1

APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS 

OF LAW AS GUARANTEED BY THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN 

OF THE OHIO CONSTITUTION IN THAT HE WAS 

INCOMPETENT TO STAND TRIAL OR TO TAKE A PLEA.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN FAILING TO MERGE THE 

WEAPON UNDER DISABILITY WITH THE FELONIOUS 

ASSAULT.

ASSIGNMENT OF ERROR NO. 3

R.C. 2967.271 (THE REAGAN TOKES LAW) VIOLATED 

APPELLANT’S RIGHT TO DUE PROCESS UNDER THE 

FOURTEENTH AMENDMENT OF THE UNITED STATES 

CONSTITUTION AND ARTICLE 1, SECTION 16, OF THE 

OHIO CONSTITUTION.

First Assignment of Error

{¶8} In his first assignment of error, Scott argues that his right to due process 

was violated because the trial court erred by not finding him incompetent to stand 

trial or in later accepting his guilty plea.

Applicable Law and Standard of Review

{¶9} “[A] defendant is presumed to be competent to stand trial, and the 

burden is on the defendant to prove by a preponderance of the evidence that he is 

not competent.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 32, citing 

State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶ 28; R.C. 2945.37(G). In a 
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criminal proceeding, if the issue of a defendant’s competency to stand trial is raised 

before the trial commences, the court shall hold a hearing on the issue. R.C. 

2945.37(B). Additionally, R.C. 2945.371(A) provides that if the issue of 

competence to stand trial is raised, the court may order one or more evaluations of 

a defendant’s present mental condition. The use of the word “may” in division (A) 

indicates that the decision whether to order a competency evaluation is a matter 

within the trial court’s discretion. State v. Matharu, 2d Dist. Montgomery No. 

26985, 2017-Ohio-8251, ¶ 14; see State v. Bailey, 90 Ohio App.3d 58, 67 (11th Dist. 

1992).

{¶10} The test for determining a defendant’s competency to stand trial is 

“ ‘ “whether [the defendant] has sufficient present ability to consult with his lawyer 

with a reasonable degree of rational understanding—and whether he has a rational 

as well as factual understanding of the proceedings against him.” ʼ ” Neyland, citing 

State v. Berry, 72 Ohio St.3d 354, 359 (1995), quoting Dusky v. United States, 362 

U.S. 402, 80 S.Ct. 788 (1960), quoting the argument of then Solicitor General J. Lee 

Rankin. The constitutional standard for determining a defendant’s competency to 

stand trial and his competency to enter a guilty plea are the same. State v. Purdy, 

3d Dist. Auglaize No. 2-21-16, 2022-Ohio-1131, ¶ 8. 

{¶11} We review a trial court’s decision on competency for an abuse of 

discretion. Id. Additionally, when reviewing a trial court’s decision, deference on 
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whether to conduct a competency hearing should be given to the trial court since it 

was able to see and hear what transpired in the courtroom. Id.

Analysis

{¶12} In this case, Scott contends the record contains sufficient indicia of 

incompetence to stand trial based on a video recording of the police interview with 

Scott and his uncooperative behavior with defense counsel in final trial preparation. 

Scott further contends that his disruptive behavior during the trial, and subsequently 

during the plea, should have caused the trial court to sua sponte conduct further 

inquiry by an additional hearing or order a competency evaluation prior to 

proceeding with the trial or taking Scott’s plea. 

{¶13} The record reflects that defense counsel filed the motion questioning 

Scott’s competency to stand trial after Scott, who appeared agitated, began acting 

erratically and refusing to cooperate with counsel when counsel went to visit him at 

the jail three days before the trial was to start, and also because Scott had originally 

claimed to be hearing voices at the time of the November 2020 police interview. 

However, defense counsel also recounted for the trial court the history of his 

representation of Scott over the prior eight months and counsel noted that at no time 

during that representation did counsel feel Scott might be incompetent. Counsel 

specifically noted that he was aware Scott had some mental health issues, but 

confirmed that during the course of the representation Scott had never acted in a 
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way that made counsel question his sanity or his ability to assist in the defense of 

his case (i.e., Scott always knew who counsel was, understood the role of the court, 

and what the trial was).

{¶14} The State then introduced into evidence recordings of Scott’s 

telephone calls to his girlfriend from the jail that had been made the preceding day. 

The State argued those recorded conversations show that Scott indicated a clear 

understanding of the nature and objectives of the court proceedings and an ability 

to assist in his defense.

{¶15} Then, upon further inquiry by the trial court, defense counsel 

confirmed that he had always been able to discuss the case with Scott, had provided 

and reviewed discovery with him, and had been able to talk to him about trial 

strategies and plea deals. When asked whether Scott had anything to tell the court,

Scott said that he was going to remain silent.

{¶16} In reaching the ultimate finding that Scott was competent to stand trial, 

the trial court judge noted that she had interacted with Scott in court numerous times 

throughout the pendency of his case and had observed his ability to articulate things 

and to understand issues relating to the case, as well as noted the course of defense 

counsel’s contact with Scott. Additionally, the trial court noted that the jail phone 

call recordings from the day before reflected that Scott understood the role of 

defense counsel, as well as the roles of the prosecutor and the court, that he
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understood the types of punishments he might receive, and that he demonstrated an 

understanding of the possible defenses that he may have. The trial court found that 

Scott’s “lashing out” type of behavior with defense counsel three days before the 

start of the trial was not an indication that Scott was incompetent to stand trial, 

particularly given that he had never previously given anyone a reason to question 

his competency until essentially the last minute, prior to the commencement of the 

trial. (Tr. at 19-20).

{¶17} In addition, the record reflects no significant change in Scott’s 

behavior after the start of the trial that would create doubt as to whether he was 

incompetent as constitutionally defined. The record further reflects the trial court 

judge, based on, again, listening to the recorded phone calls, indicated that Scott’s 

behavior was a result of his temper, not a mental problem. The record also reflects 

that Scott understood the nature of the ultimate plea proceedings.

{¶18} Based on our review, we conclude the record does not show any abuse 

of discretion on the part of the trial court with respect to the determination of Scott’s 

competency to stand trial or with respect to the taking of his plea with respect 

thereto. Scott’s first assignment of error is overruled.

Second Assignment of Error

{¶19} In his second assignment of error, Scott claims the trial court erred in 

failing to merge the conviction for weapons under disability in Count 2 with his 
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conviction for felonious assault in Count 1. Specifically, Scott argues that the two 

offenses were allied offenses of similar import subject to merger pursuant to R.C. 

2941.25. Scott did not raise this argument in the trial court and has, therefore, 

forfeited all but plain error review on appeal. See Crim.R. 52(B); State v. Rogers, 

143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 3; State v. Prince, 3d Dist. Allen No. 1-21-

14, 2021-Ohio-4475, ¶ 9. “[A] forfeited error is not reversible error unless it 

affected the outcome of the proceeding and reversal is necessary to correct a 

manifest miscarriage of justice.” Rogers. Regarding the issue of merger/allied 

offenses, the accused must “demonstrate a reasonable probability that the 

convictions are for allied offenses of similar import committed with the same 

conduct and without a separate animus; absent that showing, the accused cannot 

demonstrate that the trial court’s failure to inquire whether the convictions merge 

for purposes of sentencing was plain error.” Id.

{¶20} Pursuant to R.C. 2941.25(A), “[w]here the same conduct by defendant 

can be construed to constitute two or more allied offenses of similar import, the 

indictment or information may contain counts for all such offenses, but the 

defendant may be convicted of only one.” However, “[w]here the defendant’s 

conduct constitutes two or more offenses of dissimilar import, or where his conduct 

results in two or more offenses of the same or similar kind committed separately or 

with a separate animus as to each, the indictment or information may contain counts 
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for all such offenses, and the defendant may be convicted of all of them.” R.C. 

2941.25(B).

{¶21} “As a practical matter, when determining whether offenses are allied 

offenses of similar import within the meaning of R.C. 2941.25, courts must ask three 

questions when the defendant’s conduct supports multiple offenses:”

(1) Were the offenses dissimilar in import or significance?

(2) Were they committed separately? and

(3) Were they committed with separate animus or motivation?

An affirmative answer to any of the above will permit separate 

convictions. The conduct, the animus, and the import must all be 

considered.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 31. Prince at ¶ 10.

{¶22} Other appellate districts have held that having weapons while under 

disability and felonious assault generally do not merge, because the charges do not 

involve the same animus. See, e.g., State v. Frazier, 2d Dist. Clark No. 2021-CA46, 2021-Ohio-4155 and State v. Elder, 5th Dist. Richland No. 2011-CA-00058, 

2011-Ohio-4438. As stated by the Fifth District Court of Appeals in Elder, “ ‘the 

animus of having weapons under disability is making a conscious choice to possess 

a weapon. Felonious assault requires a conscious choice to attack someone using a 

weapon.’ ” Frazier at ¶ 22, quoting Elder at ¶ 7.

{¶23} Citing to the Ruff case, Scott’s defense counsel’s sentencing 

memorandum summarily indicated that the offenses in this case do not merge. The 

trial court was satisfied upon the facts that there was no merger of the two offenses
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pursuant to Ruff and R.C. 2941.25. In reviewing the trial court’s decision, to the 

extent the record reflects facts relevant to the issue (i.e. the transcript of the aborted 

trial), the factual circumstances do not support the merger of Scott’s felonious 

assault and having weapons while under disability offenses. The State’s evidence 

established that Scott had ownership and possession of the .22 caliber firearm before 

he exited his trailer, and that he retrieved it to commit the acts forming the basis of 

the felonious assault. Additionally, during a consented search of the premises and 

having been told by Scott that there was a gun safe in the trailer, the police recovered 

a second gun inside the gun safe indicating that Scott constructively possessed that 

second gun. Therefore, Scott cannot demonstrate that there was plain error in 

convicting him of both Counts 1 and 2 at sentencing.

{¶24} The second assignment of error is overruled.

Third Assignment of Error

{¶25} In his third assignment of error, Scott contends that the indefinite 

sentence of incarceration imposed on Count 1 pursuant to the Reagan Tokes law is 

unconstitutional as a violation of his due process rights.

{¶26} We first note that Scott did not challenge the constitutionality of the 

Reagan Tokes law before the trial court. For this reason, we apply the plain-error 

standard of review in this case. Accord State v. Ball, 3d Dist. Allen No. 1-21-16, 

2022-Ohio-1549, ¶ 57. “An error qualifies as ‘plain error’ only if it is obvious and 
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but for the error, the outcome of the proceeding clearly would have been otherwise.” 

State v. Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 8, citing State 

v. Yarbrough, 95 Ohio St.3d 227, 245, 2002-Ohio-2126, ¶ 32.

{¶27} As this Court also noted in Ball, challenges to the Reagan Tokes law 

do not present a matter of first impression in this Court. Ball at ¶ 59. “Since the 

indefinite sentencing provisions of the Reagan Tokes Law went into effect in March 

2019, we have repeatedly been asked to address the constitutionality of these 

provisions. We have invariably concluded that the indefinite sentencing provisions 

of the Reagan Tokes Law do not * * * infringe on defendants’ due process rights.” 

Id. citing e.g., State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 10-

11; State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048, ¶ 22; State v. 

Wolfe, 3d Dist. Union No. 14-21-16, 2022-Ohio-96, ¶ 21.

{¶28} On the basis of Ball and our prior precedent, this Court finds no merit 

to Scott’s contention. The third assignment of error is overruled.

{¶29} Accordingly, the judgment of the Allen County Common Pleas Court 

is affirmed.

Judgment Affirmed

ZIMMERMAN, P.J. and MILLER, J., concur.

/jlr