[Cite as State v. Cedeno,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 102327 and 102328

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

NOEL CEDENO DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-12-564978-A and CR-13-580862-A

BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J.

RELEASED AND JOURNALIZED: December 24, 2015 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender By: Jeffrey Gamso Assistant Cuyahoga County Public Defender 310 Lakeside Avenue Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Owen M. Patton Ronni Ducoff Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, P.J.:

{¶1} In this consolidated appeal, defendant-appellant, Noel Cedeno, appeals his

convictions contending that the court erred when it revoked his right to

self-representation and allocution. For the reasons that follow, we affirm.

{¶2} In 2011, Cedeno was originally named in a six-count indictment charging him

with sex offenses involving a child under the age of thirteen. The original indictment

and two subsequent indictments were dismissed without prejudice due to inaccuracies

regarding the dates of the alleged offenses. Cedeno was ultimately re-indicted in August

2012 under Case No. CR-12-564978 with eleven charges, including four counts of

importuning, two counts each of gross sexual imposition, rape, kidnapping, and one count

of attempted gross sexual imposition. Most of the counts contained sexually violent

predator and repeat violent offender specifications, and notices of prior convictions.

{¶3} In September 2013 and during the pretrial stages of this case, another victim

under the age of thirteen came forward alleging that Cedeno raped her. As a result,

Cedeno was charged under Case No. CR-13-580862 with one count of rape and

kidnapping. Each count contained various specifications, and notices of prior

convictions. Case Nos. CR-12-564978 and CR-13-580862 were consolidated without

objection.

{¶4} Cedeno subsequently waived his right to a jury trial. During the bench trial,

the state presented to the court testimony from the victims, their friends and family

members, a medical expert, a caseworker, two counselors, and the detective assigned to investigate the cases. Following the close of the state’s case, the state dismissed two

counts of importuning as charged in Case No. CR-12-564978. After hearing testimony

from Cedeno’s witnesses, the trial court denied his renewed Crim.R. 29 motion for

acquittal.

{¶5} In Case No. CR-12-564978, Cedeno was found guilty of two counts of gross

sexual imposition of a child under the age of thirteen, one count of rape of a child under

the age of thirteen, one count of kidnapping a child under the age of thirteen with a sexual

motivation specification, and one count of attempted gross sexual imposition. He was

found not guilty of one count of rape and kidnapping and two counts of importuning. In

Case No. CR-13-580862, the court found Cedeno guilty of one count of rape of a child

under ten years old and one count of kidnapping.

{¶6} Cedeno was sentenced to a mandatory life in prison sentence in Case No.

CR-12-564978, to run consecutively to a mandatory life in prison sentence in Case No.

CR-13-580862. Cedeno appeals, raising two assignments of error.

I. Revocation of Self-Representation

{¶7} On the same day that trial was scheduled to begin on Case No.

CR-12-564978, Cedeno stated in open court that he no longer wanted his attorney to

represent him. The court advised him that the case was going to trial and that he could

either represent himself or have another attorney appointed. Cedeno requested “another

attorney to be assigned.” (Tr. 9.) He further stated, “[I] deny consent to go to a bench

trial or a jury trial.” (Tr. 10.) The trial court stated that his request for new counsel was “sounding * * * more and more like [Cedeno was] trying simply to delay these

proceedings by waiting until the day before trial to tell us that you want a different

attorney.” (Tr. 18.) The state agreed that this was a stall tactic and objected to the

appointment of new counsel. Nevertheless, the trial court indicated it would appoint

Cedeno new counsel and continue the matter for a pretrial.

{¶8} In an October 2012 pretrial, Cedeno rejected the services of newly appointed

defense counsel and requested to represent himself. Cedeno indicated he filed a waiver

of counsel and a written Crim.R. 44(C) motion, whereby he indicated he was proceeding

pro se, that his attorney was appointed without his consent, that he does not consent to

any continuances or to go to trial because the trial court violated the doctrine of “unclean

hands.” During this hearing Cedeno continued to deny consent to any trials on any cases

before this court. Although the state requested a referral to the court psychiatric clinic,

the court denied the state’s request, stating “[B]eing obstinate is not, in itself, a sign of

mental disease or illness such as to make him incompetent to stand trial.” (Tr. 31-32.)

After advising Cedeno about the perils of representing himself, the trial court allowed

Cedeno to proceed pro se. The court further ordered that the state provide Cedeno with

discovery.

{¶9} At the next pretrial in November, Cedeno refused the state’s discovery

because he did not consent for it to be requested, it was incomplete and untimely. After

Cedeno indicated that he would not accept any discovery from the state, the court relieved

the state of its discovery obligations. Based on the court’s overall observations of Cedeno’s behavior “that appeared to be irrational, bizarre, and inconsistent with his

claimed ability to conduct an effective trial — either to a jury or to the court,” the court

referred Cedeno to the Court Psychiatric Clinic for a competency evaluation to stand trial

and to determine whether he was competent to waive his right to counsel.

{¶10} At the Court Psychiatric Clinic, Dr. George Schmedlen attempted to

evaluate Cedeno. However, according to Dr. Schmedlen’s report, Cedeno declined to

sign any medical releases and did not want to be evaluated. Dr. Schmedlen, after

learning that Cedeno wanted to represent himself at trial and that Cedeno refused to

accept discovery from the state, opined that “Cedeno’s behavior raises a genuine issue as

to his competency to stand trial and his competency to proceed pro-se.” However,

because of Cedeno’s refusal to cooperate, Dr. Schmedlen could not assess his competency

and suggested an inpatient evaluation at Northcoast Behavioral Healthcare. Both the

trial court and the state indicated to Cedeno that a competency evaluation was necessary

to determine whether he could represent himself.

{¶11} Following Dr. Schmedlen’s recommendation, the trial court ordered Cedeno

to undergo a 20-day inpatient evaluation at Northcoast Behavioral Healthcare. In

January 2013, the trial court received a report from Dr. Joy Stankowski who referred to

the findings of Dr. Jason Beaman. Dr. Beaman reported that he attempted to evaluate

Cedeno; however Cedeno refused evaluation because he was competent to stand trial and

to represent himself. Dr. Beaman concluded that it was his opinion that Cedeno’s “lack of cooperation is volitional and does not stem from a mental condition.” Therefore, Dr.

Beaman found Cedeno competent.

{¶12} Troubled that Cedeno was declared competent even though Dr. Beaman did

not conduct an evaluation, the court referred Cedeno to Twin Valley Behavioral

Healthcare for further evaluation. In open court, Cedeno refused an evaluation stating he

has “nothing wrong” with him, he understood “perfect what the charge is,” denied

consent to a lawyer, and demanded to represent himself. (Tr. 119.)

{¶13} In June 2013, the trial court received the competency report prepared by Dr.

Howard Sokolov of Twin Valley Behavioral Healthcare. Dr. Sokolov opined that

Cedeno was both “competent to assist in [his] defense” and “able to voluntarily,

knowingly and intelligently waive his right to counsel so that he can proceed pro se.”

(Tr. 127.)

{¶14} The trial court then asked Cedeno whether he agreed or stipulated to the

report of Dr. Sokolov and the conclusions contained in the report. Cedeno responded

that “I’m not going to accept it” because he did not consent to the evaluation or for Dr.

Sokolov to make a report. (Tr. 132, 138.)

{¶15} Cedeno again was evaluated in the Court Psychiatric Clinic by Dr. Stephen

Noffsinger who found Cedeno competent to stand trial and to proceed pro se.

Nevertheless, Cedeno refused to stipulate to Dr. Noffsinger’s report because it was

neither signed nor did he give consent to do an evaluation. {¶16} Upon request by the state, the trial court conducted a hearing to hear

testimony from Dr. Noffsinger. During the hearing, Cedeno questioned Dr. Noffsinger

about the report he prepared and how he could “give an evaluation of a person that was

only with [him] for 15 minutes.” (Tr. 192.) Dr. Noffsinger responded:

As I mentioned, I did not do a thorough evaluation based on your decision to not cooperate. You told me several times that you were going to exert your right to not cooperate

So, again, my evaluation is limited to what’s in your records, and then my direct observations of you, but I am able to say with reasonable medical certainty that you do not have a present mental condition that would impair you from understanding the nature and objectives of the court proceedings or in assisting in your defense, or to impair you from intelligently, knowingly, and voluntarily waiving your right to counsel.

(Tr. 192-193.)

{¶17} Even though the court told Cedeno that Dr. Noffsinger concluded he was

competent and he could waive his right to counsel, Cedeno refused to accept Dr.

Noffsinger’s report or opinion because he never gave consent. Based on Cedeno’s

refusal, the trial court indicated it would render a written decision whether it would allow

Cedeno to continue to proceed without counsel.

{¶18} In the trial court’s written decision deciding that Cedeno could not represent

himself in this case, the court stated,

[Cedeno’s] actions have made it clear that he understands neither the charges against him nor even the most basic elements of what it would take to defend against those charges.

*** Notwithstanding the absence of a diagnosis of “severe mental disease,” however, the court finds that the concerns first voiced by Dr. Schmedlen — that the defendant’s behavior “...raises a genuine issue as to his competency to stand trial and competency to proceed pro-se” — are supported, and indeed amplified, by the consistent pattern of behavior by the defendant himself throughout the proceedings * * *.

{¶19} The trial court then listed several instances where Cedeno’s behavior

indicated he could not proceed pro se — (1) he repeatedly denied his consent to either a

bench or jury trial, (2) he rejected the state’s discovery because it was not requested, and

it was incomplete and untimely; but then complained that he did not receive discovery

from the state; (3) he failed to accept the reports of multiple physicians that found him

competent to stand trial and to represent himself because he “did not consent to the

evaluations”; (4) he maintained the cases against him were closed or that the court lacked

jurisdiction over him because he was a “man of flesh and blood”; (5) he referred to the

charges against him as “victimless crimes”; and (6) he filed a number of motions that

were irrelevant to the proceedings.

{¶20} The trial court reasoned that “either (1) [Cedeno] is not competent to

provide himself with even the most rudimentary defense against these very serious

charges, or (2) the defendant is competent, but is acting in this manner with the specific

and perverse intention of making a mockery of these proceedings.” The court concluded

that to secure the fairness of the proceedings and to protect all involved, including the

defendant, the alleged victims, and the community, Cedeno could not continue to proceed

without counsel. {¶21} When the trial court announced its ruling in open court, Cedeno repeated

that he wanted to represent himself. Nevertheless, after the trial court explained its

ruling, Cedeno changed his focus and questioned when his attorney would visit him. At

that point, the court suggested that his appointed counsel in the newly indicted case —

Case No. CR-13-580862 — could also represent him in this case. No objection was

raised by Cedeno.

{¶22} Subsequently, his two cases were consolidated, Cedeno appeared with

counsel, and the cases proceeded to trial. Cedeno did not raise any objection or

complaint about his attorney or that he wanted to proceed pro se during the guilt phase.

After he was convicted in both cases and during sentencing, Cedeno complained that he

was deprived of his right of self-representation.

{¶23} In his first assignment of error, Cedeno contends that the trial court

committed error and denied him his rights under the Sixth and Fourteenth Amendments to

the United States Constitution and under Section 10, Article I of the Ohio Constitution

when it revoked his right to represent himself and ordered that he would have to be

represented by counsel.

{¶24} The Sixth Amendment guarantees a criminal defendant a right to

self-representation. State v. Gibson,

,

(1976),

paragraph one of the syllabus, citing Faretta v. California,

,

,

(1975).

To invoke the right of self-representation, the right to the assistance of counsel must be knowingly, voluntarily, and intelligently waived. A two part inquiry may be required. First, the court must determine the defendant is competent to waive the right to counsel if the court has reason to doubt the defendant’s competence. Second, the court must decide whether the waiver is knowing and voluntarily.

State v. Watson,

,

(8th Dist. 1998), citing Godinez

v. Moran,

,

,

(1993); see also State

v. Cassano,

,

,

.

{¶25} Before a trial court permits a criminal defendant to represent himself, a valid

waiver of counsel must appear affirmatively in the record. State v. Irwin, 8th Dist.

Cuyahoga No. 90772,

; State v. Martin, 8th Dist. Cuyahoga No. 80198,

. To establish an effective waiver, “the trial court must make sufficient

inquiry to determine whether a defendant fully understands and intelligently relinquishes

that right.” Irwin at ¶ 34, citing Gibson at paragraph two of the syllabus. Although

there is no prescribed colloquy, it is essential that the trial court ascertains that the

defendant is aware of the dangers and disadvantages of self-representation, and that he is

making the decision with his “eyes open.” Irwin at ¶ 35, citing

.

Specifically, the trial court must advise the defendant of the nature of the charges against

him, the range of allowable punishment, the possible defenses, any mitigating

circumstances, and the dangers of self-representation. State v. Ford, 8th Dist. Cuyahoga

No. 86951,

, citing State v. Martin, 8th Dist. Cuyahoga No. 80198,

.

{¶26} In this case and after advising Cedeno of the perils of proceeding pro se, the

trial court initially concluded that Cedeno was competent to waive counsel and to stand trial, and despite the state suggesting otherwise, the court stated that “[B]eing obstinate is

not, in itself, a sign of mental disease or illness such as to make him incompetent to stand

trial.” (Tr. 31-32.) Therefore, the court allowed Cedeno to proceed pro se.

{¶27} However, the right of self-representation is not absolute. Indiana v.

Edwards,

,

,

(2008). There will be times

when “the government’s interest in ensuring the integrity and efficacy of the trial will

outweigh the defendant’s interest in acting as his own lawyer.” Martinez v. Court of

Appeal of California, 528 U.S.152, 162, 120 S.Ct.684,

(2000); United

States v. Young,

(S.D. Ohio 2001) (the trial court may terminate

self-representation by a defendant who deliberately engages in serious and obstructionist

misconduct).

{¶28} In this case, after the trial court observed Cedeno’s irrational and bizarre

behaviors in open court and through his pro se motions, the court determined that it was

necessary for Cedeno to undergo an evaluation to determine whether he fully understood

and intelligently relinquished his right to counsel. Subsequently, multiple doctors opined

that Cedeno was competent to stand trial and to represent himself at trial.

{¶29} Nevertheless, a trial court may rely on its own observations to determine

whether to grant a defendant’s request to proceed pro se, which may be contrary to the

expert reports. See State v. Were,

,

,

(court may rely on own observations to determine competency). Additionally, the trial

court may consider how an expert reached a conclusion when deciding whether the accept his conclusion. See State v. Nickell, 6th Dist. Wood No. WD-07-015,

(reversing a trial court’s determination that the defendant was competent to stand trial

because the sole expert evaluation relied upon by the court was based on a single

interview and stated vague, generalized conclusions and where the defendant’s responses

to the trial court’s questions demonstrated that she lacked competency).

{¶30} In this case, the trial court relied on its own observations and interactions

with Cedeno and the circumstances surrounding the competency evaluations when it

decided to terminate Cedeno’s ability to self-represent. The court noted that despite the

reports concluding Cedeno was competent, no formal and complete evaluation was

conducted because Cedeno refused to cooperate or otherwise participate in the

evaluations. This defiant behavior was evidenced when the court asked Cedeno whether

he accepted the opinion of Drs. Sokolov and Noffsinger that he was competent to stand

trial and to represent himself. Cedeno repeatedly stated that he did not accept or stipulate

to the reports because he “never consented to the evaluations.” This response is clear

that Cedeno did not understand the legal procedures before the court.

{¶31} Cedeno’s misunderstanding of the legal proceedings was further

demonstrated when he repeatedly asserted that he did not consent to any trial before the

court and that the trial court lacked jurisdiction because he is “a [m]an of flesh and

blood.” The record also demonstrates that Cedeno did not understand the nature and

severity of his charges through his motion practice by referring to his charges as

“victimless crimes.” {¶32} Our review of the record reveals that Cedeno’s pattern of delay and

manipulation began on September 27, 2012, the day Case No. CR-12-564978 was

originally scheduled for trial, when he first denied “consent to go to trial to a bench trial

or jury,” and expressed dissatisfaction with his attorney and requested that the attorney be

removed from his case. Although the trial court gave Cedeno the option of

self-representation, Cedeno requested that another attorney be appointed, whom he later

stated was “unsatisfactory.”

{¶33} Cedeno’s obstructionist behavior was further evidenced by his refusal to

accept discovery from the state. He initially rejected the state’s discovery because he

“did not request it”; rather, his counsel made the request without consent. Later, he

complained that the state did not comply with the discovery request because it would not

provide him with all discovery and the production was untimely. After Cedeno indicated

he would not accept the state’s discovery, he subsequently filed an “Affidavit of

Fact/Writ of Discovery” where he “demands for Crim.R. 16, discovery.”

{¶34} These obstructionist behaviors, delay tactics, and deliberate manipulations

prompted the trial court to terminate Cedeno’s self-representation. It was readily

apparent that Cedeno would not cooperate in the proceedings, even when the matter was

helpful to Cedeno or was a ruling in his favor. In Faretta, the United States Supreme

Court noted that “[T]he right to self-representation is not a license to abuse the dignity of

the courtroom. Neither is it a license not to comply with the relevant rules of procedural

and substantive law.” Faretta,

,

,

. The trial court attempted to protect all parties and the integrity of the proceedings in its

decision, and we find no abuse of discretion.

{¶35} Finally, we note that after trial commenced, Cedeno never renewed his

request to self-represent. In Halder, this court discussed this precise situation — “the

fact that [the defendant] never renewed his desire to represent himself was ‘helpful in

evaluating [his] intended use of the request, i.e., was it a sincere desire to proceed pro se

or manipulative.’” State v. Halder, 8th Dist. Cuyahoga No. 87974,

;

State v. Williams, 8th Dist. Cuyahoga No. 99859,

(Stewart, J.,

dissenting).

{¶36} Accordingly, after thoroughly reviewing the circumstances of the case and

relevant case law, we conclude that the trial court did not abuse its discretion in revoking

Cedeno’s right to represent himself. The first assignment of error is overruled.

II. Right to Allocution

{¶37} In his second assignment of error, Cedeno contends that the trial court

committed error and denied him his rights under the Sixth and Fourteenth Amendments to

the United States Constitution, Section 10, Article I of the Ohio Constitution, R.C.

2929.19(A)(1), and Crim.R. 32(A)(1) when it granted the state’s objection and summarily

revoked his right to allocution.

{¶38} Pursuant to Crim.R. 32(A)(1) and R.C. 2929.19(A), the trial court is

required to personally address a defendant and give him an opportunity to speak prior to

sentencing. “‘The purpose of allocution is to allow the defendant an additional opportunity to state any further information which the judge may take into consideration

when determining the sentence to imposed [sic].’” State v. Budreaux, 8th Dist.

Cuyahoga No. 63698,

, *4 (Sept. 16, 1993), quoting

Defiance v. Cannon,

,

(3d Dist. 1990). See also

State v. Smith, 2d Dist. Greene No. 94-CA-86,

(Nov. 8,

1995) (finding no error when a court limits a defendant’s presentence statement to those

issues that bear upon the impending punishment and that may carry mitigative weight);

State v. Evans, 8th Dist. Cuyahoga No. 85396,

.

{¶39} In this case, the trial court afforded Cedeno his right of allocution. The

initial statements made by Cedeno were unrelated to mitigation of his punishment, and

instead focused on extraneous matters that could have been raised during trial. After the

trial court sustained the state’s objection to these unrelated statements, the trial court

directed Cedeno “that the issue before us right now is what you have to say, if anything,

with respect to the sentence that is to be imposed.” (Tr. 928.) The record does not

reflect that Cedeno was interrupted or limited during his second opportunity to address

the court in mitigation.

{¶40} Accordingly, the record demonstrates that the trial court did not interfere

with Cedeno’s rights afforded by the Sixth and Fourteenth Amendments to the United

States Constitution and by Section 10, Article I of the Ohio Constitution when it limited

Cedeno’s allocution to statements related to the mitigation of punishment. The second

assignment of error is overruled. {¶41} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable 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. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. 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 Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and MELODY J. STEWART, J., CONCUR