COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60303 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION LORENZO R. VEREEN, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-226,913 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: David L. Doughten 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, J.: Lorenzo Vereen pled guilty to three counts of rape and was sentenced. He brought this appeal, asserting that the trial court should not have accepted his plea without referring him for a second psychiatric evaluation and holding a second competency hearing. For the reasons set forth below, this assignment of error is overruled. Vereen was originally charged with twelve counts of rape. All counts specified that the victims were under age 13 and that the defendant used force. He pled not guilty. Vereen was referred for psychiatric evaluation of his competence to stand trial and his sanity at the time of the act. The psychiatrist reported to the court that Vereen was competent to stand trial and sane at the time of the act. At a pretrial on September 6, 1988, the psychiatric reports were stipulated to by the parties. At a hearing on September 22, 1988, the prosecutor stated that the defendant had agreed to change his plea. The prosecutor agreed to nolle nine counts of rape and delete the force specification from the remaining three counts upon entry of a plea of guilty to the amended indictment. The defendant pled guilty, and stated that the plea was voluntary and of his free will. The court accepted the plea. The court proceeded to sentence the defendant. Defendant brought this delayed appeal by leave of court, assigning one error as follows: THE TRIAL COURT ERRED BY ACCEPTING THE APPELLANT'S GUILTY PLEA WITHOUT HOLDING A HEARING SUA SPONTE ON THE -3- ISSUE OF THE APPELLANT'S COMPETENCY TO STAND TRIAL PURSUANT TO R.C. 2945.37. R.C. 2945.37(A) provides in pertinent part as follows: (A) In a criminal action in a court of common pleas or municipal court, the court, prosecutor, or defendant may raise the issue of the defendant's competence to stand trial. If the issue is raised before trial, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after trial has begun, the court shall hold a hearing on the issue only for good cause shown. A defendant is presumed competent to stand trial, unless it is proved by a preponderance of the evidence in a hearing under this section that because of his present mental condition he is incapable of understanding the nature and objective of the proceedings against him or of presently assisting in his defense. The court shall not find a defendant incompetent to stand trial solely because he is receiving or has received treatment as a voluntary or involuntary mentally ill patient or mentally retarded resident under Chapter 5122. or 5123. of the Revised Code or because he is receiving or has received psychotropic drugs or other medication under medical supervision, even though without the drugs or medication the defendant might become incompetent to stand trial. The court shall conduct the hearing within thirty days after the issue is raised, unless the defendant has been referred for examination under section 2945.371 of the Revised Code, in which case the court shall conduct the hearing within ten days after the filing of the report required by that section. A hearing may be continued for good cause shown. (Emphasis added.) In this case, appellant was referred for psychiatric evaluation of his competency to stand trial. The report indicating competence was stipulated to at a hearing on September 6. -4- On September 22, appellant changed his plea to guilty. His lawyer stated that, in his professional opinion, the plea was knowledgeable, intelligent and voluntary. The court proceeded to question appellant pursuant to Crim. R. 11 as follows: THE COURT: All right, then, I have to advise you of your Rights. You say yes or no when it is appropriate. You have heard what the lawyers have said, you understand the nature of your business before the Court this afternoon? MR. VEREEN: Yes, sir. THE COURT: You are not under the influence of alcohol, medications, or drugs? MR. VEREEN: I'm under medication. THE COURT: What kind of medication is MR. VEREEN: Thorazine. THE COURT: Does that affect your thinking MR. VEREEN: No. THE COURT: You understand what is going MR. VEREEN: Yes, sir. THE COURT: All right. I am to advise you, first of all, that you are not required to plead to anything if you don't want to. You understand that? MR. VEREEN: Yes. THE COURT: Please say yes or no. MR. VEREEN: Yes, sir. THE COURT: You may have a trial before a judge or a judge and jury. You understand that? -5- MR. VEREEN: Yes, sir. THE COURT: Further, if you would wish a trial you have the right to be confronted by anyone who would testify against you. Your lawyer would have an opportunity to examine those people. You can use the subpoena process to require people to testify for you. And I want to remind you it is also necessary that the State prove your guilt beyond a reasonable doubt at that trial. It is not necessary for you to prove your innocence. Are you aware of those Rights? MR. VEREEN: Yes. THE COURT: You may testify or remain silent. If you chose to remain silent the State would be prevented from commenting on the fact you exercised your Constitutional Right not to testify. You understand that? MR. VEREEN: Yes. THE COURT: Has anyone made any promises or threats to you to induce you to make the plea you are thinking of making? MR. VEREEN: No. THE COURT: The prosecutor indicates these charges, all twelve of them, are aggravated felonies of the first degree punishable by a minimum of five, six, seven, eight, nine, ten up to a maximum twenty-five years, and/or up to a possible maximum fine of $10,000 for each event. You understand that? MR. VEREEN: Yes, sir. THE COURT: Do you have any questions, then, about the nature of your business before the Court, anything about your case that you don't understand and would like explained to you either by your lawyer, the prosecutor or myself? MR. VEREEN: No, your Honor. -6- THE COURT: All right, then, what is your plea to counts one, five, and nine of the twelve count indictment all of which constitute rape of which constitutes, are aggravated felonies of the first degree, guilty or not guilty? MR. VEREEN: Guilty. THE COURT: Are those three pleas voluntarily made and of your own free will? MR. VEREEN: Yes, they are. THE COURT: Let the record show the Court finds the defendant understands his Constitutional Rights, voluntarily waives those rights, and enters a plea of guilty to counts one, five and nine. Let me say he is pleading to counts one, five, and nine as amended, and they are amended, the force and threat of force was deleted which makes them aggravated felonies of the first degree, and so the Court accepts the plea. Is there any reason we can't proceed on this now? MR. HUBBARD: No reason at all, your Honor. THE COURT: Let the record show the defendant was referred to the Court Psychiatric Clinic for a competency report, and that the Court as well as defense counsel have reviewed the report. And Dr. Quinn indicated that the defendant was competent to stand trial, and she also states that it was her opinion at the time of the act Mr. Vereen did not have a mental disease. Also Mr. Vereen knew this was wrongful of such act and could have restrained from such act. In any event, you acquiesce in the report? MR. HUBBARD: Yes, your Honor, we accept the report. A guilty plea is considered to have been made voluntarily where the record shows that: the defendant voluntarily and knowingly waved three rights: the privilege against compulsory self- incrimination guaranteed by the Fifth Amendment, the -7- right to trial by jury, and the right to confront one's accusers. State v. Johnson (1988), 40 Ohio St. 3d 130, 132. The record quoted above reflects that the court properly questioned appellant about his knowledge of the proceedings and his willingness to plead guilty. It also does not reflect any evidence of incompetence. Appellant claims that the court should not have accepted his plea and should have ordered a second evaluation and hearing because he was on medication, and because the prior psychiatric evaluation was done six weeks prior to his change of plea. The fact that appellant was on medication, without more, does not indicate that his plea was not knowing and voluntary. As long as the court has properly evaluated the defendant's plea pursuant to the totality of the circumstances and Crim. R. 11, the fact that the defendant was on medication is insufficient to overturn that finding. See, e.g., State v. Claflin (Oct. 29, 1987), Cuyahoga App. No. 52948, unreported. See also R.C. 2945.38(A), which provides that defendants who are found competent while medicated shall continue the medication in order to maintain their competence to stand trial. In this case, the trial court properly questioned appellant pursuant to Crim. R. 11(C). Appellant affirmatively represented that the medication did not affect his thinking. Appellant had been on the same medication when he was evaluated and found -8- competent the first time. The trial court had no reason to reevaluate appellant solely because of the medication. Appellant also argues that the six-week time lapse between the first competency evaluation and appellant's change of plea justified a second evaluation and hearing, citing Drope v. Missouri (1975), 420 U.S. 162. In Drope, the U.S. Supreme Court stated at 179 that "the record reveals a failure to give proper weight to the information suggesting incompetence which came to light during trial". The court found that the information concerning competence (including a suicide attempt to avoid trial)," created a sufficient doubt of [the defendant's] competence to stand trial to require further inquiry on the subject". Id. In this case, there is no evidence indicating incompetence which came to light after appellant's evaluation and before his change of plea. Accordingly, there was no reason for the court to order further inquiry into appellant's competence. Appellant's assignment of error is overruled. Judgement affirmed. -9- It is ordered that appellee recover of appellant its 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 conviction 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. DAVID T. MATIA, C.J., and FRANCIS E. SWEENEY, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .