[Cite as State v. Swoveland, 2018-Ohio-2875.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

VAN WERT COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 15-17-14 

 v. 

DAN J. SWOVELAND, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Van Wert County Common Pleas Court 

Trial Court No. CR-17-04-049 

Judgment Affirmed 

Date of Decision: July 23, 2018 

 

APPEARANCES: 

 

Thomas J. Lucente, Jr. for Appellant 

 Kelly J. Rauch for Appellee 
Case No. 15-17-14 

-2- 

PRESTON, J. 

{¶1} Defendant-appellant, Dan J. Swoveland (“Swoveland”), appeals the 

December 4, 2017 judgment entry of sentence of the Van Wert County Court of 

Common Pleas. We affirm. 

{¶2} On May 4, 2017, the Van Wert County Grand Jury indicted Swoveland 

on five counts: Counts One and Two of illegal manufacture of drugs in violation of 

R.C. 2925.04(A), (C)(3)(b), first-degree felonies; Count Three of illegal assembly 

or possession of chemicals for the manufacture of drugs in violation of R.C. 

2925.041(A), (C), a second-degree felony; Count Four of aggravated funding of 

drug trafficking in violation of R.C. 2925.05(A)(1), a first-degree felony; and Count 

Five of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), 

(B)(1). (Doc. No. 3). 

{¶3} On May 10, 2017, Swoveland appeared for arraignment and pled not 

guilty to the counts of the indictment. (Doc. No. 11). 

{¶4} On October 11, 2017, Swoveland withdrew his pleas of not guilty and 

entered guilty pleas, under a written plea agreement, to Counts One and Three. 

(Doc. No. 26). In exchange for his change of pleas, the State agreed to dismiss 

Counts Two, Four, and Five of the indictment and recommend that Swoveland serve 

a seven-year prison sentence. (Id.). The trial court accepted Swoveland’s guilty 
Case No. 15-17-14 

-3- 

pleas, found him guilty on Counts One and Three, and ordered a presentence 

investigation. (Doc. No. 27). 

{¶5} On December 4, 2017, the trial court sentenced Swoveland to 7 years 

in prison on Count One and 5 years in prison on Count Three and ordered that 

Swoveland serve the terms consecutively for an aggregate term of 12 years. (Doc. 

No. 31). 

{¶6} On December 22, 2017, Swoveland filed a notice of appeal. (Doc. No. 

45). He raises three assignments of error for our review. 

Assignment of Error No. I 

Appellant’s guilty pleas were involuntary and should be vacated 

due to appellant’s in-court statements. 

{¶7} In his first assignment of error, Swoveland argues that his guilty pleas 

were not made knowingly, intelligently, and voluntarily. In particular, Swoveland 

contends that his guilty pleas were not knowing, intelligent, or voluntary because 

his in-court statements do not reflect that he was knowingly, intelligently, and 

voluntarily admitting guilt to Counts One and Three of the indictment. 

{¶8} “All guilty pleas must be made knowingly, voluntarily, and 

intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-

Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “‘“Failure on 

any of those points renders enforcement of the plea unconstitutional under both the 

United States Constitution and the Ohio Constitution.”’” State v. Montgomery, 3d 
Case No. 15-17-14 

-4- 

Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 10, quoting State v. Veney, 120 Ohio 

St.3d 176, 2008-Ohio-5200, ¶ 7, quoting Engle at 527. Crim.R. 11(C)(2), which 

governs guilty pleas for felony-level offenses, provides: 

In felony cases the court may refuse to accept a plea of guilty or a plea 

of no contest, and shall not accept a plea of guilty or no contest 

without first addressing the defendant personally and doing all of the 

following: 

(a) Determining that the defendant is making the plea voluntarily, 

with understanding of the nature of the charges and of the maximum 

penalty involved, and if applicable, that the defendant is not eligible 

for probation or for the imposition of community control sanctions at 

the sentencing hearing. 

(b) Informing the defendant of and determining that the defendant 

understands the effect of the plea of guilty or no contest, and that the 

court, upon acceptance of the plea, may proceed with judgment and 

sentence. 

(c) Informing the defendant and determining that the defendant 

understands that by the plea the defendant is waiving the rights to jury 

trial, to confront witnesses against him or her, to have compulsory 

process for obtaining witnesses in the defendant’s favor, and to 
Case No. 15-17-14 

-5- 

require the state to prove the defendant’s guilt beyond a reasonable 

doubt at a trial at which the defendant cannot be compelled to testify 

against himself or herself. 

{¶9} “A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally 

advise a defendant before accepting a felony plea that the plea waives the 

defendant’s constitutional rights.” Montgomery at ¶ 11, citing Veney at ¶ 31. 

“‘When a trial court fails to strictly comply with this duty, the defendant’s plea is 

invalid.’” Id., quoting Veney at ¶ 31. “A trial court, however, is required to only 

substantially comply with the non-constitutional notifications in Crim.R. 

11(C)(2)(a) and (b).” Id., citing Veney at ¶ 14-17. 

{¶10} “An appellate court reviews the substantial-compliance standard 

based upon the totality of the circumstances surrounding the defendant’s plea and 

determines whether he subjectively understood the implications of his plea and the 

rights he waived.” Id. at ¶ 12, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-

Ohio-509, ¶ 20. “‘Furthermore, a defendant who challenges his guilty plea on the 

basis that it was not knowingly, intelligently, and voluntarily made must show a 

prejudicial effect. * * * The test is whether the plea would have otherwise been 

made.’” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990). 

{¶11} In support of his argument that his guilty plea was not knowing, 

intelligent, or voluntary, Swoveland points to exchanges that occurred during the 
Case No. 15-17-14 

-6- 

sentencing hearing. First, Swoveland points to a statement indicating that he 

“thought he could get community service” after “pleading guilty to one first-degree 

felony and one second-degree felony, each with mandatory prison time.” 

(Appellant’s Brief at 9). In other words, Swoveland is challenging the trial court’s 

compliance with Crim.R. 11(C)(2)(a). 

{¶12} To substantially comply with the requirements of Crim.R. 11(C)(2)(a) 

in instances “where a defendant faces a mandatory prison sentence,” a “trial court 

must determine, prior to accepting a plea, that the defendant understands that he or 

she is subject to a mandatory prison sentence and that as a result of the mandatory 

prison sentence, he or she is not eligible for probation or community control 

sanctions.” State v. Tutt, 8th Dist. Cuyahoga No. 102687, 2015-Ohio-5145, ¶ 19, 

citing State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶ 10, 

State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14, State v. 

Hendrix, 12th Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, ¶ 6, and State v. 

Dawson, 8th Dist. Cuyahoga No. 61828, 1993 WL 12286, *2 (Jan. 23, 1993). 

A trial court can meet this requirement either by expressly informing 

the defendant that he or she is subject to a mandatory prison sentence 

and is therefore ineligible for probation or community control 

sanctions or by confirming the defendant’s subjective understanding 

of that fact in some other way, i.e., if the “totality of the 
Case No. 15-17-14 

-7- 

circumstances” warrants the trial court in making a determination that 

the defendant otherwise understands, prior to entering his plea, that he 

or she is subject to a mandatory prison sentence. 

Id. at ¶ 20, citing State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio-1796, 

¶ 11 (“The mere fact that the [trial] 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.”) 

and State v. McLaughlin, 8th Dist. Cuyahoga No. 83149, 2004-Ohio-2334, ¶ 19 

(“[T]he trial court need not specifically inform the defendant he is ‘ineligible for 

probation’ if the totality of the circumstances warrant the trial court in making a 

determination the defendant understands the offense is ‘nonprobational.’”). 

{¶13} At the change-of-plea hearing, the trial court informed Swoveland that 

he was subject to mandatory terms of imprisonment based on the offenses to which 

he was admitting guilt. (See Oct. 11, 2017 Tr. at 18-19, 27-28); (Doc. No. 26). (See 

also Oct. 11, 2017 Tr. at 26-27). Swoveland unequivocally stated that he understood 

that he was subject to mandatory terms of imprisonment as a result of admitting 

guilt to Counts One and Three of the indictment. (See Oct. 11, 2017 Tr. at 19, 28). 

{¶14} However, Swoveland contends that the knowingness, intelligence, and 

voluntariness of his guilty pleas is undermined by his statements at the sentencing 
Case No. 15-17-14 

-8- 

hearing seeking “community service” as punishment and asserting that he is “really 

not guilty of what [he is] being accused of.” (Dec. 4, 2017 Tr. at 47). Swoveland’s 

arguments are belied by the record. After Swoveland appealed for “community 

service” and asserted that he is not guilty, the trial court stopped the sentencing 

hearing to allow Swoveland to consult with his trial counsel. (Id. at 48-49). Once 

Swoveland had the opportunity to consult with his trial counsel, the trial court first 

inquired whether Swoveland recalled being “informed that there was a mandatory 

minimum sentence on Count 1, a felony of the first degree, of four years in prison, 

and a mandatory minimum sentence on Count 3, a felony of the second degree, of 

three years in prison * * *.” (Id. at 50). Swoveland stated that he recalled that 

information. (Id.). Thus, we conclude that the totality of the circumstances 

demonstrate that Swoveland subjectively understood that he was “subject to a 

mandatory prison sentence, which rendered him ineligible for probation or 

community-control sanctions.” Tutt at ¶ 22. Accordingly, the trial court 

substantially complied with the requirements of Crim.R. 11(C)(2)(a). See id. 

{¶15} Second, Swoveland contends that the trial court failed to comply with 

the requirements of Crim.R. 11(C)(2) in accepting his guilty pleas based on his 

statement at the sentencing hearing that “he was not actually guilty.” (Id.). 

Although unclear, it appears that Swoveland is arguing that the trial court failed to 

conduct an enhanced “Alford inquiry” to assess whether his guilty pleas were 
Case No. 15-17-14 

-9- 

voluntarily and intelligently made. Compare State v. Carey, 3d Dist. Union No. 14-

10-25, 2011-Ohio-1998, ¶ 5 (“Carey now asserts that her ‘protestations of 

innocence’ meant that her plea was actually an ‘Alford plea.’ Therefore, Carey 

contends that the trial court erred when it accepted her plea without conducting an 

enhanced inquiry in order to determine that her plea was voluntarily and 

intelligently made.”). (See Appellant’s Brief at 9-10); (Dec. 4, 2017 Tr. at 48, 51-

52). 

{¶16} An “Alford plea” is a specialized type of guilty plea when the 

defendant, although pleading guilty, continues to deny his or her guilt 

but enters the guilty plea because the defendant believes that the 

offered sentence is better than what the outcome of a trial is likely to 

be. 

Carey at ¶ 6, citing State v. Schmidt, 3d Dist. Mercer No. 10-10-04, 2010-Ohio4809, ¶ 13 and State v. Piacella, 27 Ohio St.2d 92 (1971). 

The term “Alford plea” originated with the United States Supreme 

Court’s decision in North Carolina v. Alford, wherein the Supreme 

Court held that guilty pleas linked with claims of innocence may be 

accepted provided the “defendant intelligently concludes that his 

interests require entry of a guilty plea and the record before the judge 

contains strong evidence of actual guilt.” 
Case No. 15-17-14 

-10- 

Id., quoting 400 U.S. 25, 37, 91 S.Ct. 160 (1971). “Although an Alford plea allows 

a defendant to maintain his factual innocence, the plea has the same legal effect as 

a guilty plea.” Id., citing State v. Vogelsong, 3d Dist. Hancock No. 5-06-60, 2007-

Ohio-4935, ¶ 15. 

{¶17} “All pleas, including an Alford plea, must meet the general 

requirement that the defendant knowingly, voluntarily, and intelligently waived his 

or her right to trial.” Id. at ¶ 7, citing State v. Padgett, 67 Ohio App.3d 332, 337-

338 (2d Dist.1990), construing Crim.R. 11(C). 

Where the defendant interjects protestations of innocence into the plea 

proceedings, and fails to recant those protestations of innocence, the 

trial court must determine that the defendant has made a rational 

calculation to plead guilty notwithstanding his belief that he is 

innocent. This requires, at a minimum, inquiry of the defendant 

concerning his reasons for deciding to plead guilty notwithstanding 

his protestations of innocence; it may require, in addition, inquiry 

concerning the state’s evidence in order to determine that the 

likelihood of the defendant’s being convicted of offenses of equal or 

greater magnitude than the offenses to which he is pleading guilty is 

great enough to warrant an intelligent decision to plead guilty. 

(Emphasis added.) Padgett at 338-339. 
Case No. 15-17-14 

-11- 

{¶18} Notwithstanding Swoveland’s argument, the record does not support 

that he entered an Alford plea. See Carey at ¶ 8 (“Although Carey now claims that 

she entered an ‘Alford plea,’ the record does not support that assertion.”). Despite 

Swoveland’s protestation of innocence, Swoveland recanted that protestation of 

innocence later during the sentencing hearing. See id. (“Carey made one, tenuous 

denial as to her participation in the events but, thereafter, she fully acknowledged 

her guilt.”). See also id. at ¶ 9, citing Padgett at 338-339. 

{¶19} Indeed, the trial court inquired: 

[Trial Court]: Mr. Swoveland, I’m going to ask you two more 

questions. You previously entered a plea of guilty 

to Count 1, Illegal Manufacturing of Drugs, a 

violation of [R.C.] 2925.04(A)[, (C)](3), a felony of 

the first degree. Sir, are you guilty of that offense? 

 * * * 

[Swoveland]: Yes 

[Trial Court]: Likewise, in Count 3, Illegal Assembly or 

Possession of Chemicals for Manufacturing of 

Drugs, a violation of [R.C. 2925.041(A), (C)], a 

felony of the second degree, are you guilty of that 

offense, sir? 
Case No. 15-17-14 

-12- 

[Swoveland]: Yes, your honor. 

(Dec. 4, 2017 Tr. at 52-53). Moreover, neither Swoveland nor his trial counsel 

represented that his pleas were Alford pleas. See Carey at ¶ 8 (“Neither Carey nor 

her attorney ever represented her plea to be an Alford plea—not during the plea 

negotiations, not at the change of plea hearing, nor in her lengthy plea agreement.”), 

citing State v. Pate, 3d Dist. Hancock No. 5-96-12, 1996 WL 689196, *3 (Nov. 19, 

1996) (noting that the requirements for an Alford plea were not met because “there 

was never any oral or written notice that such a plea was being attempted”). At best, 

Swoveland’s trial counsel referred to Swoveland’s guilty pleas at the sentencing 

hearing as entered on what he “would call Alford terms,” to which the trial court 

responded that “we didn’t do an Alford plea.” (Dec. 4, 2017 Tr. at 48). Moreover, 

while Swoveland’s trial counsel later acknowledged on the record that Swoveland’s 

pleas were not Alford pleas, he stated, “Again, we did not specify Alford during the 

plea, but as a practical matter, Mr. Swoveland’s, I guess, intent in entering into the 

plea was very much akin to an Alford plea under the circumstances.” (Id. at 51-52). 

Equating a plea to an Alford plea does not render that plea an Alford plea. As we 

discussed above, an Alford plea is a specific legal tool with specific procedural 

requirements. None of those requirements were satisfied in this case. 

{¶20} Accordingly, because the requirements of an Alford plea were not 

satisfied, and because Swoveland recanted his protestation of innocence, we need 
Case No. 15-17-14 

-13- 

not, and do not, address whether the trial court erred by accepting Swoveland’s 

guilty pleas without conducting an enhanced inquiry as required for an Alford plea. 

Rather, Swoveland’s guilty pleas were knowing, intelligent, and voluntary within 

the “ordinary” meaning of Crim.R. 11(C)(2). 

{¶21} As we decided above, the trial court substantially complied with the 

requirements of Crim.R. 11(C)(2)(a). The trial court also substantially complied 

with the requirements of Crim.R. 11(C)(2)(b). “Crim.R. 11(C)(2)(b) requires the 

trial court to inform the defendant of the effect of his guilty or no-contest plea and 

to determine whether he understands that effect.” State v. Jones, 2d Dist. 

Montgomery No. 25688, 2014-Ohio-5574, ¶ 7, citing State v. Jones, 116 Ohio St.3d 

211, 2007-Ohio-6093, ¶ 12 and State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio4415, ¶ 10-12. See also Crim.R. 11(B). “To satisfy the effect-of-plea requirement 

under Crim.R. 11(C)(2)(b), a trial court must inform the defendant, either orally or 

in writing, of the appropriate language in Crim.R. 11(B).” Id. at ¶ 8, citing Jones at 

¶ 25, 51. In this case, under Crim.R. 11(B), the trial court was required to inform 

Swoveland that “[t]he plea of guilty is a complete admission of [his] guilt.” Crim.R. 

11(B)(1). The trial informed Swoveland that his guilty pleas were “a complete 

admission of guilt,” and Swoveland indicated that he understood that his pleas were 

a complete admission of guilt. (Oct. 11, 2017 Tr. at 21). 
Case No. 15-17-14 

-14- 

{¶22} Finally, the trial court strictly complied with Crim.R. 11(C)(2)(c) 

during its colloquy with Swoveland at the change-of-plea hearing. (Id. at 21-23). 

Compare Montgomery, 2014-Ohio-1789, at ¶ 13 (concluding that “the trial court 

strictly complied with Crim.R. 11(C)(2)(c) at the change-of-plea hearing”). 

Swoveland indicated that he understood the rights that he was waiving by pleading 

guilty. (Oct. 11, 2017 Tr. at 21-23). See Montgomery at ¶ 13. Consequently, we 

are not persuaded that the trial court erred by accepting Swoveland’s guilty pleas. 

Montgomery at ¶ 13. Stated another way, Swoveland’s guilty pleas were not 

rendered unknowing, unintelligent, or involuntary based on his statements at the 

sentencing hearing. Moreover, Swoveland failed to argue—much less establish—

prejudice in this case, i.e. that he would not have pled guilty but for the trial court’s 

alleged errors. Id., citing Nero, 56 Ohio St.3d at 108. 

{¶23} Swoveland’s first assignment of error is overruled. 

Assignment of Error No. II 

Appellant’s guilty pleas were involuntary and should be vacated 

due to the appellant’s incompetency and the trial court committed 

plain error by failing to sua sponte order a competency evaluation 

of appellant prior to accepting the guilty plea. 

{¶24} Swoveland argues under his second assignment of error that his guilty 

pleas were invalid because the trial court failed to sua sponte order a hearing 

regarding Swoveland’s competency to knowingly, intelligently, and voluntarily 

plead guilty. 
Case No. 15-17-14 

-15- 

{¶25} In addition to the requirement that a defendant’s guilty plea be 

knowing, intelligent, and voluntary, a trial court must satisfy itself that a defendant 

who seeks to plead guilty is competent. State v. Montgomery, 148 Ohio St.3d 347, 

2016-Ohio-5487, ¶ 56, reconsideration granted in part in other grounds, 147 Ohio 

St.3d 1438, 2016-Ohio-7677, citing Godinez v. Moran, 509 U.S. 389, 396, 400, 113 

S.Ct. 2680 (1993). “A defendant is presumed 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. Prophet, 10th Dist. Franklin No. 14AP-875, 2015-Ohio4997, ¶ 13, citing State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶ 28, State 

v. Scurlock, 2d Dist. Clark No. 2002-CA-34, 2003-Ohio-1052, ¶ 77, and R.C. 

2945.37(G). 

{¶26} In a criminal action in a court of common pleas, * * * the court, 

prosecutor, or defense may raise the issue of the defendant’s 

competence to stand trial. If the issue is raised before the trial has 

commenced, the court shall hold a hearing on the issue as provided in 

this section. If the issue is raised after the trial has commenced, the 

court shall hold a hearing on the issue only for good cause shown or 

on the court’s own motion. 

R.C. 2945.37(B). In assessing whether to order such a hearing, the trial court should 

consider “‘(1) doubts expressed by counsel as to the defendant’s competence, (2) 
Case No. 15-17-14 

-16- 

evidence of irrational behavior, (3) the defendant’s demeanor at trial, and (4) prior 

medical opinion relating to competence to stand trial.’” State v. Hartman, 174 Ohio 

App.3d 244, 2007-Ohio-6555, ¶ 15 (3d Dist.), quoting State v. Rubenstein, 40 Ohio 

App.3d 57, 60-61 (8th Dist.1987). 

{¶27} “The constitutional standard for assessing a defendant’s competency 

to enter a guilty plea is the same as that for determining his competency to stand 

trial.” Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, at ¶ 56, citing Godinez 

at 398-399. “The defendant must have a ‘“sufficient present ability to consult with 

his lawyer with a reasonable degree of rational understanding” and [have] “a 

rational as well as factual understanding of the proceedings against him.”’” Id., 

quoting Godinez at 396, quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788 

(1960). 

{¶28} Because it is left to the discretion of the trial court, we review a trial 

court’s decision to order a competency hearing for an abuse of discretion. State v. 

Shepherd, 3d Dist. Wyandot No. 16-09-03, 2009-Ohio-3317, ¶ 9; Prophet, 2015-

Ohio-4997, at ¶ 14, citing State v. Smith, 89 Ohio St.3d 323, 330 (1990). An abuse 

of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. 

State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). “When reviewing the trial 

court’s decision on whether to conduct a competency hearing sua sponte, an 
Case No. 15-17-14 

-17- 

appellate court should give deference to the trial court since it was able to see and 

hear what transpired in the courtroom.” Shepherd at ¶ 9, citing Smith at 330. 

{¶29} It is undisputed that Swoveland’s competency was not raised prior to 

the change-of-plea hearing. Instead, Swoveland contends that the trial court abused 

its discretion by failing to order a hearing regarding his competency based on the 

evidence discussed under his first assignment of error regarding the knowingness, 

intelligence, and voluntariness of his guilty pleas coupled with statements made by 

the trial court and Swoveland’s trial counsel at the change-of-plea and sentencing 

hearings, respectively. 

{¶30} In support of his argument, Swoveland points to an exchange during 

the change-of-plea hearing as evidence that the trial court harbored concern 

regarding his competency. That exchange, which concerned his release before 

sentencing, reflects: 

[Trial Court]: Now it’s my understanding that you’re going to go 

to your, is it your sister’s house or your brother’s 

house? 

[Swoveland]: Do I have to? Could I go home to my own house? 

Your honor? 

[Trial Court]: I’m concerned about that. 

[Swoveland]: Why? 
Case No. 15-17-14 

-18- 

[Trial Court]: I don’t have to state all of my concerns. 

[Swoveland]: Huh? 

(Oct. 11, 2017 Tr. at 34). Swoveland also points to his trial counsel’s statement at 

the sentencing hearing that Swoveland “‘doesn’t process information the same way 

the rest of us do.’” (Appellant’s Brief at 10, quoting Dec. 4, 2017 Tr. at 45). 

{¶31} After reviewing the record, we cannot conclude that the trial court 

acted unreasonably, arbitrarily, or unconscionably by failing to sua sponte order a 

hearing regarding Swoveland’s competency. There is insufficient indicia of 

incompetence. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 157. 

Under the factors that the trial court should consider when deciding whether to order 

a competency hearing, there is no evidence that Swoveland behaved irrationally in 

the courtroom or that there is a prior medical opinion relating to Swoveland’s 

competence to stand trial. To the extent that Swoveland argues that the trial court 

and his trial counsel expressed doubts as to Swoveland’s competency, we disagree. 

First, Swoveland hypothesizes that the trial court “did not feel safe letting him be 

alone under house arrest” in response to the trial court’s statement to Swoveland 

that it was not required to recite its concerns for prohibiting Swoveland to be 

released to his residence. (Appellant’s Brief at 12). There is no evidence in the 

record supporting Swoveland’s hypothesis. Instead, there is evidence in the record 

reflecting that the trial court could have harbored concerns other than Swoveland’s 
Case No. 15-17-14 

-19- 

mental state—that is, there is evidence in the record reflecting Swoveland’s personal 

drug abuse and propensity to engage in criminal activity when pressured by others. 

Without definitive evidence that the trial court actually possessed concerns about 

Swoveland’s competency, we defer to the trial court’s determination, as we are 

required to do, since it was able to see and hear what transpired in the courtroom. 

{¶32} Second, Swoveland’s argument that his trial counsel’s statement that 

he processes information differently demonstrates that his trial counsel expressed 

doubts as to his competence is also erroneous. Read in context, Swoveland’s trial 

counsel’s statement was part of his statement to the trial court before Swoveland’s 

sentencing explaining the circumstances of the case. Indeed, the spirit of the 

evidence that Swoveland’s trial counsel presented on Swoveland’s behalf in 

mitigation of a harsh sentence was that he is easily impressionable and was 

pressured into participating in the criminal activity. 

{¶33} Finally, based on our analysis under Swoveland’s first assignment of 

error, we summarily reject Swoveland’s argument relying on any evidence that his 

guilty pleas were not knowing, intelligent, or voluntary as indicia of incompetence. 

{¶34} Beyond the factors that the trial court should consider when 

determining whether to order a competency hearing, there is also no evidence in the 

record that Swoveland was incompetent. That is, there is no evidence in the record 

reflecting that Swoveland did not have a sufficient present ability to consult with 
Case No. 15-17-14 

-20- 

his trial attorney with a reasonable degree of rational understanding and no evidence 

that Swoveland did not have a rational and factual understanding of the proceedings 

against him. See State v. Ferguson, 2d Dist. Montgomery No. 27325, 2018-Ohio987, ¶ 18, citing State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 32, citing 

State v. Berry, 72 Ohio St.3d 354, 359 (1995) and Dusky, 362 U.S. at 402. 

{¶35} Indeed, at the change-of-plea hearing, Swoveland appropriately 

responded to the trial court’s colloquy. In particular, Swoveland declared that he 

understood the nature of the charges against him; that he had an opportunity to 

review and discuss those charges with his trial counsel; that he was satisfied with 

his trial counsel’s representation; and that he was not under the influence of drugs 

or alcohol. (Oct. 11, 2017 Tr. at 19-20, 24, 29-30). Moreover, Swoveland executed 

the negotiated plea agreement reflecting the same. (Doc. No. 26). Compare 

Shepherd, 2009-Ohio-3317, at ¶ 12. 

{¶36} For these reasons, we conclude that the trial court did not abuse its 

discretion by failing to sua sponte order a hearing regarding Swoveland’s 

competency. As such, to the extent that Swoveland argues that his guilty pleas are 

invalid because he was incompetent, we reject Swoveland’s argument. 

{¶37} Swoveland’s second assignment of error is overruled. 

Assignment of Error No. III 

Defendant was denied the effective assistance of counsel as 

required by the Sixth Amendment to the U.S. Constitution. 
Case No. 15-17-14 

-21- 

{¶38} In his third assignment of error, Swoveland argues, for largely the 

same reasons asserted in his second assignment of error, that his trial counsel was 

ineffective for failing to request a hearing regarding Swoveland’s competency. 

{¶39} A defendant asserting a claim of ineffective assistance of counsel must 

establish: (1) the counsel’s performance was deficient or unreasonable under the 

circumstances; and (2) the deficient performance prejudiced the defendant. State v. 

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052 (1984). To establish prejudice when ineffective assistance of 

counsel relates to a guilty plea, a defendant must show there is a reasonable 

probability that but for counsel’s deficient or unreasonable performance the 

defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992), 

citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Strickland, 466 U.S. 

at 687. 

{¶40} Based on our conclusions in Swoveland’s second assignment of error, 

we reject Swoveland’s ineffective-assistance-of-counsel argument. That is, 

Swoveland cannot show that his trial counsel’s performance was deficient or 

unreasonable under the circumstances because, as we concluded under Swoveland’s 

second assignment of error, there is insufficient indicia in the record demonstrating 

that the trial court should have ordered a competency hearing or that Swoveland was 

incompetent. 
Case No. 15-17-14 

-22- 

{¶41} Swoveland’s third assignment of error is overruled. 

{¶42} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI, P.J. and SHAW, J., concur. 

/jlr