[Cite as State v. Miller,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104721

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

HARRY MILLER DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601583-A

BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: May 4, 2017 ATTORNEY FOR APPELLANT

Britta M. Barthol P.O. Box 670218 Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

BY: Jeffrey Schnatter Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Harry Miller (“Miller”), appeals his convictions and

sentence. Miller raises six assignments of error, but we find the first assigned error has

merit and is dispositive of this appeal. It states:

1. The trial court erred in failing to hold a competency hearing prior to accepting the appellant’s plea when the issue of his competency was raised prior to trial.

I. Facts and Procedural History

{¶2} Miller was charged with one count of gross sexual imposition in violation of

R.C. 2907.05(A)(4), with a sexual motivation specification, and one count of kidnapping

in violation of R.C. 2905.01(A)(4). The charges resulted from an incident in which

Miller molested the victim, K.G., in a movie theater.

{¶3} K.G.’s grandmother brought K.G. and her brother to see a children’s movie

titled “The Peanuts Movie.” Although the theater was practically empty, Miller chose to

sit next to K.G., and rubbed her leg during the film. K.G., who was ten years old, told

her grandmother about the incident after the movie. Miller, who remained at the scene to

see another children’s movie, was arrested later that evening.

{¶4} Miller pleaded guilty to one count of kidnapping in violation of R.C.

2905.01(A)(3), which no longer included language involving a victim under 13 years of

age, and one count of gross sexual imposition, which was amended to delete the sexual motivation specification. The kidnapping and gross sexual imposition counts merged for

sentencing purposes, and the state elected to have Miller sentenced on the kidnapping

charge. The court sentenced Miller to a ten-year prison term followed by five years of

postrelease control. The court also classified Miller as a Tier I sex offender. Miller

now appeals his convictions and sentence.

II. Law and Analysis

{¶5} In the first assignment of error, Miller argues the trial court erred by failing to

hold a competency hearing before accepting his guilty plea.

{¶6} “Fundamental principles of due process require that a criminal defendant who

is legally incompetent shall not be subjected to trial.” State v. Berry,

,

(1995). A defendant is “incompetent” if he “is incapable of

understanding the nature and objective of the proceedings against [him] or of assisting in

the defendant’s defense.”

{¶7} If a defendant’s competency to stand trial “is raised before the trial has

commenced, the court shall hold a hearing on the issue.” (Emphasis added.) R.C.

2945.37(B). Therefore, “where the issue of the defendant’s competency to stand trial is

raised prior to trial, a competency hearing is mandatory.” State v. Bock,

,

(1986); see also State v. Ahmed,

,

,

, ¶ 64; State v. Jirousek, 8th Dist. Cuyahoga No. 99641,

. {¶8} In Bock, the Ohio Supreme Court held that “the failure to hold a mandatory

competency hearing is a harmless error where the record fails to reveal sufficient indicia

of incompetency.” Id. at 110. The state argues we should find the court’s failure to

hold a competency hearing in this case was harmless because an unsworn witness at

Miller’s sentencing hearing stated that a psychological report from the court’s psychiatric

clinic indicated he was competent.

{¶9} However, this case is distinguishable from Bock. In Bock, the court found

the defendant competent because he testified at trial, was subject to cross-examination,

and the record failed to reveal sufficient indicia of incompetency. Id., at paragraph one

of the syllabus. In this case, Miller pleaded guilty; he did not testify. At the plea

hearing, Miller answered yes or no to questions about whether he understood the rights he

was waiving by virtue of his guilty plea. There were no “indicia of competency” on

which the court could make an accurate competency determination. Indeed, the record is

devoid of any formal finding regarding Miller’s competency despite an order referring

Miller to the court psychiatric clinic for a competency evaluation.

{¶10} The facts of this case are identical to the facts in State v. Flanagan, 8th Dist.

Cuyahoga No. 103680,

, in which this court reversed the defendant’s

conviction because the trial court failed to hold a competency hearing before accepting

the defendant’s guilty plea. In Flanagan, we explained:

Unlike in Bock, the record in this case is insufficient to allow us to conclude that the trial court’s failure to conduct a competency hearing was harmless error. Although the court psychiatric clinic submitted a report, no further action was taken to determine whether Flanagan was competent — the docket reflects that the parties did not stipulate to Flanagan’s competence, the trial court did not hold a hearing to evaluate Flanagan’s competence, and the trial court made no formal finding regarding Flanagan’s competence after the issue was raised.

Indeed, the docket contains no reference whatsoever to Flanagan’s competency after the docket entry referring him for a competency evaluation. And the transcript of the plea hearing demonstrates that the trial court made no reference to the competency report or to Flanagan’s competency prior to accepting his plea. After the plea was taken, the trial court informed Flanagan of the date for sentencing. Only then did it note that there was a court psychiatric report dated June 19, 2015, concerning Flanagan’s competency to stand trial, and a mitigation report dated April 27, 2015. The court then asked defense counsel if either report needed to be updated for the purposes of sentencing. The trial court made no competency determination at or before the plea hearing; its comments about the competency report, made after the plea was accepted, were the only reference it made to Flanagan’s competency.

Thus, in Flanagan, we determined that the trial court’s failure to hold a competency

hearing was not harmless even though the court received a report from the court’s

psychiatric clinic indicating the defendant was competent.

{¶11} A criminal defendant is not required to stipulate to the court’s psychiatric

report because he has the right to challenge it. The purpose of a competency hearing is

to give the defense an opportunity to test the validity of the findings in the report and to

make a record for appellate review. Indeed, the appellate court may reverse a trial

court’s finding of competency. See, e.g., In re Williams,

,

(2d Dist. 1997) (reversing court’s finding of competency where the reports

and testimony of expert witnesses “muddled” incorrect standards of law and inappropriate

judgments about moral responsibility.). {¶12} The docket in this case contains no reference to Miller’s competency

except for the journal entry referring him for a psychological evaluation. The court

mentioned the psychological report on the record at the plea hearing, but not until after

Miller had already entered his guilty pleas. And rather than make a determination of

competency, the court asked counsel if a competency evaluation had been done. (Tr.

20.) Although defense counsel indicated the evaluation was completed, counsel did not

indicate the results of the evaluation. The only indicia of competency came from the

unsworn statement of Miller’s niece at the sentencing hearing that the court’s

psychological evaluation indicated he was competent. It is impossible to determine

whether Miller entered his guilty pleas knowingly, intelligently, and voluntarily without

knowing if he was competent at the time he entered them.

{¶13} The fact that the trial court referred Miller for a psychological evaluation

suggests there were some indicia of incompetence. Yet, there was virtually no indicia of

competence, except for a couple of vague unsworn statements alluding to a report. An

evidentiary hearing is both statutorily and constitutionally required when the issue of

competency is raised before trial and “there are sufficient indicia of incompetency to call

into doubt the defendant’s competency to stand trial.” State v. Were,

,

(2002). Therefore, the trial court erred in failing to hold a

competency hearing as mandated by R.C. 2945.37(B) before accepting Miller’s guilty

pleas.

{¶14} The first assignment of error is sustained. {¶15} Having determined the trial court erred in failing to hold a competency

hearing before the trial court accepted Miller’s guilty pleas, the remaining assignments of

error, listed in the appendix, are moot. App.R. 12(A)(1)(c).

{¶16} Judgment reversed. We remand the case to the trial court for a competency

hearing.

It is ordered that appellant recover from appellee 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.

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

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR APPENDIX

Remaining assignments of error

II. Appellant received ineffective assistance of counsel guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendment to the United States Constitution.

III. The trial court erred in imposing the appellant’s sentence when it failed to make the required findings under R.C. 2929.11 and 2929.12.

IV. The trial court erred when it notified the appellant of his obligation to register as a sex offender.

V. The cumulative effect of the errors committed by the trial court and by appellant’s trial counsel combined to deny appellant due process and a fair trial as guaranteed by the United States and Ohio Constitutions.

VI. The trial court erred a deprived appellant of his property without due process of law and his rights under the Fifth Amendment of the United States Constitution when it imposed court costs outside his presence.