[Cite as In re S.D.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99763

IN RE: S.D. A Minor Child

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-11115723

BEFORE: Celebrezze, P.J., Jones, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: June 12, 2014 ATTORNEYS FOR APPELLANT

Timothy Young Ohio Public Defender By: Amanda J. Powell Assistant State Public Defender 250 East Broad Street Suite 1400 Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Michael Hustick Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Juvenile appellant, S.D., appeals his delinquency adjudication, which resulted

in his internment in a juvenile detention facility until his twenty-first birthday. Appellant

claims he was not competent to stand trial, and the competency evaluations relied on by

the trial court were materially flawed. Appellant also argues that he was denied his right

to allocution before disposition. After a thorough review of the record and law, we

affirm appellant’s adjudication as a delinquent minor, but vacate the court’s disposition

and remand the matter so appellant may be afforded the opportunity to be heard prior to

disposition.

I. Factual and Procedural History

{¶2} On July 24, 2011, when appellant was 15 years old, Pedro Sarsama and

Vanessa Willaman, both students at Cleveland State University, drove to a nearby gas

station to buy drinks and a pack of cigarettes. Willaman drove, parked, and walked

inside while Sarsama waited in the car. Willaman purchased some items and walked out

of the store. Immediately outside the door, she exchanged words with a man hanging

around the entrance. She walked to her car, got in, and started a conversation with

Sarsama. The man she spoke with earlier approached the driver’s side of the vehicle and

started making unwanted advances toward Willaman. He was accompanied by a young

man, whom Sarsama later identified as appellant. The older man, whose identity remains

a mystery, leaned on the car. Willaman demanded that he get off her car. The man then

produced a handgun and pulled Willaman from the vehicle. He began viciously beating her with the handle of the gun. Stunned, Sarsama began to get out of the car but was

stopped when appellant got in and took Willaman’s purse and Sarsama’s cell phone.

{¶3} The attendant working inside the gas station store, Jordan Martin, received a

call on his cell phone from an individual in the parking lot alerting him to a situation

outside. Martin walked out of the store and saw a person lying on the ground partially

obscured by a vehicle and a crowd of people. He recognized appellant among the group.

One person was beating a woman with the handle of a gun while she was lying on the

ground. Martin got out his own gun and fired into the air. The crowd rapidly disbursed,

with the armed attacker and appellant fleeing together.

{¶4} Sarsama ran to help Willaman as she lay in the parking lot. He attempted to

stop the gushing flow of blood that began to pool on the concrete. Police and emergency

personnel arrived shortly thereafter and transported Willaman to the hospital where she

remained for four days. As a result of trauma to her head, she does not remember the

attack or the events immediately preceding it.

{¶5} Martin knew appellant and was able to identify him as a member of the crowd

he observed. Appellant was arrested, and a complaint was filed August 30, 2011, in the

Cuyahoga County Common Pleas Court, Juvenile Division, alleging that appellant was

delinquent of two counts of aggravated robbery in violation of R.C. 2911.01(A)(1)

(felonies of the first degree if committed by an adult), and one count of felonious assault in violation of R.C. 2903.11(A)(1) (a felony of the second degree if committed by an

adult).1 These counts carried one- and three-year firearm specifications.

{¶6} On September 20, 2011, the state moved the trial court to hold an amenability

hearing to determine whether appellant would be bound over to the jurisdiction of the

general division of the common pleas court or remain in the juvenile division. At the

same pretrial hearing, appellant’s attorney moved that appellant be evaluated for

competency. The trial court delayed the probable cause and bind-over hearings and

ordered appellant evaluated by the court psychiatric clinic, which occurred on February

22, 2012. The court also appointed a guardian ad litem for appellant.

{¶7} The psychological evaluation resulted in a finding that appellant was not

competent to stand trial. The evaluation and report done by Dr. Steven Neuhaus, which

was stipulated to by both sides, found that appellant had significant psychological issues

that prevented him from effectively participating in the proceedings. Dr. Neuhaus

recommended that appellant be treated with medications or adjustment to medications and

be housed in a residential facility for services and treatment. However, Dr. Neuhaus

could not identify any facility that would take appellant. The state sought to have

appellant monitored and treated in the juvenile facility where he was currently being

housed after failing to abide by the terms of his release. The trial court granted the

state’s request on March 13, 2012. The court also ordered an additional competency

Appellant was later charged in two other cases — one for escape when he violated the 1

conditions of his bond and the other for assaulting a fellow youth at a detention facility. evaluation to be performed within two to three weeks. Dr. Neuhaus again interviewed

appellant on April 3, 2012, in compliance with this order.

{¶8} At a competency hearing held on May 23, 2012, Dr. Neuhaus testified that

appellant had responded well to treatment. It was the doctor’s opinion that appellant

sufficiently understood the proceedings and was able to participate in his defense. Dr.

Neuhaus opined that while appellant suffered from severe psychological problems,

medication had stabilized him to the point where he was competent to stand trial. At the

close of the hearing, the trial court found appellant competent and set a date for a

probable cause hearing. On June 21, 2012, the court issued a written decision finding

appellant competent.

{¶9} After a hearing held on September 11, 2012, the trial court determined that

there was probable cause to believe appellant committed the crimes described in the

complaint. The court also ordered that an investigation and report be completed into

appellant’s background, including an additional psychological evaluation. The court

then held a bind-over hearing on October 25, 2012. At that hearing, the court heard

arguments and took into consideration appellant’s reduced mental acuity and

psychological issues as well as the violent nature of the crimes alleged. The juvenile

court determined to retain jurisdiction over appellant, and a trial date was set.

{¶10} A trial, held on February 11, 2013, resulted in the adjudication of appellant

as a delinquent minor. The trial court found that appellant had committed crimes as set

forth in the complaint. The court stayed disposition until two other cases were resolved. On March 6, 2013, a disposition hearing was held. The trial court’s disposition called

for appellant to be placed in a juvenile detention facility until his twenty-first birthday.

{¶11} Appellant then filed the instant appeal, assigning three errors:

I. S.D. was denied his right to due process of law because he was adjudicated delinquent when he was incompetent to stand trial, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.

II. S.D. was denied his right to due process of law when the juvenile court determined him competent to stand trial outside the parameters of R.C. 2152.57(A), 2152.58(A) and (D), the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 16 of the Ohio Constitution.

III. The juvenile court violated S.D.’s rights to due process and equal protection when it imposed disposition without providing him the opportunity for allocution, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 2 and 16 of the Ohio Constitution, Crim.R. 32, Juv.R. 29, and Juv.R. 34.

II. Law and Analysis

A. Competent to Stand Trial

{¶12} In his first assignment of error, appellant maintains that he was not

competent to stand trial, and the trial court erred in finding him competent. “[A] person

[who] lacks the capacity to understand the nature and object of the proceedings against

him, to consult with counsel, and to assist in preparing his defense may not be subjected

to a trial.” Drope v. Missouri,

,

,

(1975).

This fundamental legal principle is inclusive of juvenile proceedings. In re R.H., 8th

Dist. Cuyahoga No. 98426,

. Therefore, if sufficient indicia of

incompetency arises during the pendency of the proceedings, the juvenile court is required to hold a hearing and determine if the juvenile is competent to stand trial. State

v. Were,

,

,

.

{¶13} In juvenile cases, competency determinations are governed by R.C. 2152.51

to 2152.59. Appellant first complains that the trial court erred when it found him

competent to stand trial.

{¶14} R.C. 2152.56(B) mandates that a competency assessment report shall

address the child’s capacity to do all of the following:

(1) Comprehend and appreciate the charges or allegations against the child;

(2) Understand the adversarial nature of the proceedings, including the role of the judge, defense counsel, prosecuting attorney, guardian ad litem or court-appointed special assistant, and witnesses;

(3) Assist in the child’s defense and communicate with counsel;

(4) Comprehend and appreciate the consequences that may be imposed or result from the proceedings.

{¶15} Appellant complains that the trial court erred in relying on any of the

competency evaluations performed by Dr. Neuhaus because a discussion of the exact

crimes and elements appellant was accused of committing is not apparent from the report.

Appellant cites to the fact that one of Dr. Neuhaus’s reports indicates appellant was

facing “aggravated robbery with possible gun specification (felony 1) [and] aggravated

assault (felony 5).” In fact, appellant faced aggravated robbery with gun specifications

and felonious assault charges. Appellant complains that at no time did Dr. Neuhaus

discuss with him that he was charged with two counts of first-degree-felony aggravated robbery, one count of second-degree-felony felonious assault, and related firearm

specifications.

{¶16} A discussion of the exact charges and elements of a case are not required.

The statute only mandates that the evaluation examine the individual’s capacity to

“[c]omprehend and appreciate the charges or allegations * * *.” R.C. 2152.56(B). Dr.

Neuhaus discussed with appellant the aggravated robbery charge and indicated appellant

had a sufficient understanding of it, the possible consequences of participating in the

proceedings, communicating with his attorney, and helping mount an appropriate defense.

Appellant, heeding the advice of counsel, would also not discuss the charges or their

factual bases. Appellant’s responses to several hypothetical situations brought Dr.

Neuhaus to the conclusion that appellant sufficiently understood his situation and the

consequences. This, along with the charges that were discussed, reasonably led to the

conclusion that appellant was capable of understanding the specific charges in the case

and gave the trial court sound footing in finding appellant competent.

{¶17} Perhaps the best way for an evaluator to determine if individuals

comprehend the charges levied against them is to discuss those specific charges.

However, the failure to do so does not lead to the conclusion that the evaluation is fatally

flawed. In In re R.H., 8th Dist. Cuyahoga No. 98426,

, this court found

that it was not plain error for the trial court to use a competency report generated in one

case to establish that the same juvenile was also competent in another contemporaneous

case. This court stated: Although we find error, we do not find that the trial court’s error was so plain that it created an “obvious defect in the trial proceedings,” nor that the error “affected the outcome of the trial.”

***

* * * Although the competency assessment was ordered for the aggravated assault case, the assessment does reference a “breaking and entering” case where R.H. reported to the evaluator that he refused a plea bargain, against his attorney’s advice, because he was innocent. Although the burglary case did not involve a breaking and entering charge, the elements of these crimes are similar, and based on the surrounding facts, we infer that R.H. was referring to the burglary case.

Id. at ¶ 15-16.

{¶18} In R.H., there was a stipulation to the competency report, which appellant

claims distinguishes the case from his situation. Here, the report was not stipulated to,

but appellant never raised any issue with the breadth of the report or the discussion of the

charges involved therein. Further, appellant’s counsel did not cross-examine Dr.

Neuhaus on these points. Appellant failed to raise objections or point out the defects in

the report to the trial court and offered nothing to question his ability to understand the

charges levied against him. Where errors have not been brought to the court’s attention

at a time when they could be addressed, they are waived on appeal. State v. McKee,

,

(2001) (“Errors that arise during a trial that are not

brought to the attention of the court are ordinarily waived and may not be raised on appeal

unless there is plain error, i.e., but for the error, the outcome of the trial clearly would

have been otherwise”), citing Crim.R. 52(B); State v. Johnson,

,

, (2000). Therefore, similar to the appellant in R.H., appellant has waived all but plain error. R.H. at ¶ 8, citing State v. Mink,

,

,

, ¶ 29, (“R.H. did not object to any aspect of the

competency assessment at the trial-court level. * * * Accordingly, we review this

assignment of error only for plain error”).

{¶19} In this case, the evaluator discussed the nature of the charges, but referenced

aggravated assault rather than felonious assault. The difference between aggravated

assault and felonious assault in terms of evaluating whether an individual can understand

what is required for proof is inconsequential. In fact, one is merely an inferior-degree

offense of the other. The two crimes contain the same elements with a mitigating factor

built into the statute that decreases the punishment for aggravated assault. See State v.

Deem,

,

(1988); State v. Deanda,

,

,

.

{¶20} If this was the most serious offense appellant faced, there may be some

amount of prejudice because the aggravated assault charge was described in Dr.

Neuhaus’s report as a fifth-degree felony if committed by an adult, while the felonious

assault charge was a higher degree of felony. However, appellant faced other charges

classified as first-degree felonies if committed by an adult. Also discussed was the

possible consequence that appellant would be remanded to a facility, which Dr. Neuhaus

interpreted to mean a detention facility.

{¶21} A competency evaluation does not require the evaluator to act as if he is an

attorney and explain the minutia of criminal procedure. The evaluator must assess whether the individual, in conjunction with advice from legal counsel, is capable of

assisting counsel, understanding those things necessary for a proper defense, and for the

individual to make informed decisions.

{¶22} Appellant makes much that Dr. Neuhaus did not discuss the fact that he

could face trial as an adult. However, he was not bound over to the jurisdiction of the

general division of the common pleas court. Therefore, a failure to address this aspect of

his case is not plain error.

{¶23} Appellant also claims that Dr. Neuhaus erred when he opined that appellant

was competent. Pointing to mainly the first competency evaluation, appellant argues that

he was incompetent and that no restorative services were provided between the time of

the first evaluation and the second. He only received an adjustment in his medication.

The second evaluation revealed that appellant was more oriented and able to focus on a

given task, but that he still had some difficulty focusing. Dr. Neuhaus testified that

appellant required more time and direction from counsel, but could adequately understand

what was going on and maintain sufficient focus to participate. There is nothing in the

record that transpired from the adjudicatory hearing to contradict this assessment.

Further, there is nothing in the record that demonstrates appellant’s mental state had

changed since the competency hearing. A significant period of time passed between the

competency evaluation and the adjudicatory hearing. However, appellant’s attorney

never brought up a change in appellant’s mental state and none was apparent in the

record. The attorney also did not indicate any difficulty dealing with appellant. Appellant argues that the record is unclear about his mental state during trial and his

ability to participate in the proceedings because he was asked only one question to which

he gave an appropriate one-word response, and the trial court once asked if appellant was

awake.

{¶24} If there were changes in his mental state, it was incumbent upon appellant’s

attorney to bring them to the court’s attention and put them on the record. The silent

record presumably means that appellant’s attorney was able to communicate effectively

with appellant and that no further issues arose after appellant was restored to competency.

{¶25} There was sufficient credible evidence for the trial court to find that

appellant was competent to stand trial. Therefore, appellant’s first assignment of error is

overruled.

B. Procedural Deficiencies

{¶26} Appellant advances a number of issues where he contends the trial court

procedurally erred when finding him competent. Appellant complains:

The competency determination violates R.C. 2152.57(A) or R.C. 2152.58(A) and (D), because the competency evaluation was conducted by someone not officially appointed by the court to conduct the evaluation in violation of R.C. 2152.57(A); was submitted to the court at the hearing on May 23, 2013, fifty calendar days after the evaluation was ordered in violation of R.C. 2152.57(A); the court conducted the competency hearing thirty-six calendar days after the evaluation was performed, but on the same day it was submitted to the court in violation of R.C. 2152.58(A); and, the court made a written determination of S.D.’s competence twenty business days after the hearing was conducted in violation of R.C. 2152.58(D).

{¶27} R.C. 2152.53 sets forth the steps that are required when a question of

competency is raised. In this case, the trial court determined there was a reasonable basis for a competency evaluation and ordered that one be performed. This evaluation resulted

in a finding of incompetency. Under R.C. 2152.59, once a minor is found incompetent

but able to be restored to competency within a reasonable time, a plan for restoration

services is to be initiated and the child monitored according to the further provisions

within that statute. R.C. 2152.59(C) and (E). Here, the trial court ordered that appellant

receive medications and supervision at the detention facility where he was being housed

awaiting adjudication.

{¶28} These alleged errors are reviewed for plain error because no objection was

lodged during the course of appellant’s case. No argument was raised below regarding

the authority of Dr. Neuhaus to examine appellant, the timeliness of his report, or the

timeliness of the competency hearings.

{¶29} Appellant’s citation to R.C. 2152.57 and 2152.58 are not the only statutes

implicated here. Appellant does not recognize that the second competency hearing was

governed by R.C. 2152.59. This statute directs the trial court to make a determination

pursuant to R.C. 2152.53 after receiving a report indicating that competency has been

restored. R.C. 2152.59(H)(1). It also allows the court to order a new competency

evaluation, which was performed by Dr. Neuhaus, the same doctor who was earlier

appointed by the court to evaluate appellant.

It also mandates that the court act

within 15 business days of receiving a report outlined in R.C. 2152.59(F).

{¶30} After appellant was restored to competency, the evaluations indicated

appellant had significant mental health issues, but that he was alert, aware of what was going on around him, and able to assist counsel and participate in the proceedings. Even

if the time constraints in R.C. 2152.57 and 2152.58 applied, there is no indication that the

failure of the trial court to strictly abide by the temporal requirements set forth in the

statute caused any prejudice to appellant. A further evaluation for adjudication purposes

was also conducted and did not indicate a significant change in appellant’s condition.

{¶31} In this case, just as in In re T.L., 5th Dist. Licking No. 12-CA-81,

, it was not plain error when the trial court held a hearing after the 45-day

period set forth in the statute. There was no objection raised or any instances of conduct

that would indicate that appellant’s mental state had changed. The same is true of the

issuance of a written opinion 20 rather than 15 days after the hearing. Therefore,

appellant’s second assignment of error is overruled.

C. Allocution

{¶32} Crim.R. 32(A) gives the condemned individual the right to speak prior to

sentencing or the right to allocution. State v. Green,

,

(2000). “[I]t represents a defendant’s last opportunity to plead his case or express

remorse.”

. Although not governed by Crim.R. 32, a juvenile has a right

to allocution similar to an adult. Garfield Hts. v. J.P., 8th Dist. Cuyahoga No. 87166,

.

{¶33} The Second District has recognized that

“an adjudicated delinquent has a right of allocution before disposition.” Even if it is unclear whether a statement from the juvenile would have an effect, “at the very least, he should * * * be[] afforded the opportunity to be heard, including an expression of remorse in an effort to potentially mitigate his punishment.”

In re B.M., 2d Dist. Montgomery No. 25237,

, quoting In re K.S.J.,

2d Dist. Montgomery No. 24387,

. This would indicate that a

failure to afford a right to allocution is reversible error regardless of whether the error

caused harm. This can be contrasted with the holdings of the Ohio Supreme Court and

other districts: “Thus, when a trial court imposes a sentence without first asking the

defendant if he or she wishes to exercise their right of allocution, ‘resentencing is

required unless the error is invited error or harmless error.’” In re R.D.G., 12th Dist.

Butler No. CA2010-12-323,

, ¶ 19, quoting State v. Campbell,

,

(2000).

{¶34} The state argues that any error is harmless. It essentially claims that no

matter what appellant would have said, it would not have altered the sentence imposed by

the trial court. However, it is clear from the record that the trial court considered

appellant’s silence when adjudicating this matter.

{¶35} The record indicates the trial court relied on appellant’s lack of remorse

during disposition. The court stated, “[a]nd then I’ve never even heard any words of

remorse or contrition on [appellant’s] part regarding his culpability in this. And that’s

what scares me.” Those words of contrition the court was looking for normally come, if

at all, at the sentencing or dispositional hearing after the defendant is given the

opportunity to make a statement. The fact that appellant was not afforded that right, and this was later used against him, indicates that the failure to afford appellant an

opportunity to speak was not harmless error.

III. Conclusion

{¶36} Appellant was found to be competent to stand trial by competent, credible

evidence. Nothing in the record sufficiently contradicts that finding. Therefore,

appellant was competent to stand trial, and the trial court’s adjudication of appellant as a

delinquent minor was not error. However, the trial court’s failure to afford appellant an

opportunity to speak prior to disposition requires reversal. On remand, appellant must be

afforded the opportunity to speak prior to the trial court’s disposition in this case.

{¶37} Finding of delinquency affirmed; cause reversed in part and remanded to the

lower court for disposition consistent with this opinion.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas, Juvenile Court Division to carry this judgment into execution. The

finding of delinquency having been affirmed, any bail or stay of execution pending appeal

is terminated. Case remanded to the trial court for disposition.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE LARRY A. JONES, SR., J., and EILEEN A. GALLAGHER, J., CONCUR