COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60417 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION EDWARD WHITE : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 30, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 248275 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Marlene N. Lally Cuyahoga County Prosecutor Lynch & Lynch Co., L.P.A. By: Michael J. Ertle 711 Statler Office Tower Assistant Prosecuting Attorney East 12th Street & Euclid Ave. The Justice Center Cleveland, Ohio 44115 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Edward White challenges his guilty plea on one count of murder with a gun specification. He raises four 1 assignments of error, all of which are based upon violation of his right to an independent psychiatric examination. Upon review of the record, we affirm the judgment of the trial court. White was indicted and pled not guilty in 1990 to aggravated murder with a gun specification. He later withdrew that plea and entered a plea of not guilty by reason of insanity. The judge referred him to the court psychiatric clinic pursuant to R.C. 2945.371 and 2945.39 for a determination of his competency to stand trial and sanity at the time of the act. The court also granted a defense motion for referral to an independent psychiatrist on the issue of competency. On July 17, 1990, the court set trial for July 23 at defendant's request. On that date, the court found White competent to stand trial. In the midst of trial, White withdrew his insanity plea and pled guilty to the indictment. He now appeals his conviction and sentence. 1 See Appendix. - 2 - The first and fourth assignments both specify error in the fact that, although the court granted White's motion for an independent psychiatric examination, he was not afforded one. We will address these arguments jointly. R.C. 2945.39 provides the procedure for examination and evaluation of a defendant who invokes the insanity plea. It states in part: "(A) If a defendant enters a plea of not guilty by reason of insanity, the court may order one or more, but not more than three, evaluations of the defendant's mental condition at the time of the commission of the offense. "*** "(3) *** If more than one examination is ordered, the prosecutor and the defendant may recommend to the court an examiner whom each prefers to have perform one of the examinations. *** "(C) *** The court shall notify the prosecutor and defense counsel immediately upon the appointment of an examiner under this section, and specify the name and address of the examiner. "*** The examiner shall complete the examination within thirty days after the court's order for the evaluation and shall prepare and provide to the court, prosecutor, and defense counsel a written report concerning the mental condition of the defendant. "If the court does not designate an examiner recommended by the defendant pursuant to division (A) of this section, the court shall inform the defendant that he may have independent expert evaluation and that if he is unable to obtain independent expert evaluation, it will be obtained for him, at public expense if he is indigent." In State v. Hix (1988), 38 Ohio St. 3d 129, the Supreme Court held that a defendant does not have the right to an independent psychiatric examiner under this section, "unless the trial court - 3 - has ordered more than one psychiatric evaluation and the trial court has refused to appoint an examiner recommended by the defendant." Id. at syllabus. (Emphasis original). Under the present facts, Hix is inapplicable. Here, the court ordered that psychiatric evaluations be conducted both by court appointed psychiatrists and by an independent psychiatrist to be chosen by the defendant. White now objects because the independent psychiatrist never performed an examination. In the present case, the court referred White to the court psychiatric clinic on February 23, 1990 for a determination of his competency to stand trial (R.C. 2945.371) and his sanity at the time of the act (R.C. 2945.39). On May 24, 1990, the court granted the request made by White's lawyers for an independent psychiatric examination. On July 17, 1990, the court set the case for trial "at defendant's request" on July 23. No independent psychiatric examination was ever performed upon White, but two court psychiatrists did evaluate him and provide reports. The journal entry of May 24, 1990 appointing the independent psychiatrist clearly states, "attorneys to notify the court when the psychiatric report is complete." The record is void of any notification, motion, objection or otherwise, by defendant concerning the requested independent examination. Clearly, White, through counsel, waived any right he may have had to be evaluated by an independent psychiatrist when his lawyers requested that trial proceed on July 23 and again, when he voluntarily changed his plea to guilty on July 24, 1990. - 4 - Nor does appellate counsel demonstrate in what fashion defendant was prejudiced by this waiver. The record contains three extensive reports relating to the defendant's mental condition: (1) a competency report from Kathleen C. Dougherty, M.D., of the court psychiatric clinic; (2) a sanity report from the same physician, and (3) a sanity report from Robert W. Alcorn, M.D., also from the court psychiatric clinic. Dr. Robert Alcorn opined that White was not mentally ill, that he understood the wrongfulness of his acts and, because he was not suffering from a mental disease or defect, was able to refrain from shooting the victim at the time of the act. We have examined these reports in the light of appellate counsel's challenge and are unable to find them implausible or incomplete. The first and fourth assignments of error are not well taken. In his second assignment of error, White asserts his lawyers were ineffective because they failed to ensure that an independent psychiatric examination took place. The federal test for determining whether a defendant was denied effective assistance of counsel is whether the attorney's "conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington (1984), 466 U.S. 688. In - 5 - Ohio, the test is whether the defendant, under all circumstances, has a fair trial and substantial justice was done. State v. Hester (1976), 45 Ohio St. 2d 71, paragraph four of the syllabus. To prove a claim of ineffective assistance of counsel, the defendant must demonstrate his counsel's performance was deficient and "that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley (1989), 42 Ohio St. 3d 136. There is a strong presumption defense counsel performed competently. Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. In Strickland, supra, the Supreme Court considered a similar issue. In that case, the defendant argued, inter alia, that counsel was ineffective because he failed to request a psychiatric report during the sentencing phase after defendant pleaded guilty to three capital murder charges. The court observed that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable ***." Id. at 690. The court added: "[W]hen the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. Strickland, supra, at 691. Thus, the court held that counsel's decision not to seek more psychological evidence than already presented by the state was reasonable. In so holding, the court stated, "Trial counsel could - 6 - reasonably surmise from his conversations with [defendant] that character and psychological evidence would be of little help." Id. at 699. The court concluded, "There can be little question, even without application of the presumption of adequate performance, that trial counsel's defense, though unsuccessful, was the result of reasonable professional judgment." Id. In the present case, counsel informed the court at the pretrial hearing that a complete investigation had been made into the surrounding facts and circumstances before defendant entered his plea. The record clearly demonstrates that two competent lawyers waived any further mental examinations for their client and set a trial date. There is nothing on the record to suggest that additional examination of White would have been fruitful in his defense and, thus, we cannot find the lawyers' actions unreasonable or ineffective. Strickland, supra. Defendant's reliance on State v. Archie (September 27, 1990), Franklin App. No. 89AP-804, unreported, is also misplaced. In Archie, the court held that defense counsel was ineffective in failing to request a competency hearing under R.C. 2937.45(A), which provides in part: "In a criminal action in a court of common pleas *** the court, prosecutor or defense may raise the issue of a defendant's competence to stand trial. If the issue is raised before trial, the court shall hold a hearing on the issue provided in this section." In that case, neither the prosecutor nor defense counsel raised the issue of defendant's competency before trial. Here, counsel raised the issue of competency before trial and the court - 7 - properly referred defendant for evaluation. The psychiatrist concluded that White was competent to stand trial. In assessing his competency, one physician opined: "He has a good understanding of the nature and objectives of the proceedings against him and he is able to assist in the preparation of his defense. The defendant understands that he is charged with murder and that he is facing a prison term if convicted. He understands courtroom procedures. He showed no unusual thinking related to the courtroom. The defendant is able to attend and to concentrate and provide an account of the instant offense and he is willing to work with his attorney." As we have noted, both lawyers for defendant stipulated to the propriety of the report at the July 23, 1990 pretrial hearing and thus waived the taking of testimony on the issue of White's competency. Moreover, unlike the Archie facts, the record in this case discloses sufficient indicia of White's competency. White participated in numerous conferences with his attorneys concerning his defense. However legally inadvisable, he initially took the position that he killed his victim in self-defense. Although his remarks when allocuted by the court were somewhat rambling, his responses to the court's inquiries were clear, reasonable and appropriate. The Supreme Court has stated that the failure to hold a competency hearing only constitutes plain error where the record fails to reveal sufficient indicia of competency. State v. Bock (1986), 28 Ohio St. 3d 108, 111. Incompetency is defined in Ohio as the defendant's inability to understand "*** the nature and objective of the proceedings - 8 - against him or of presently assisting in his defense." R.C. 2945.37(A). Incompetency should not be equated with "mere mental or emotional instability or even with outright insanity." Bock, supra, at 110. In fact, "a defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel." Id. We find the record does not reveal an adequate indication that defendant was incompetent to stand trial. He admitted killing the victim and that he understood the wrongfulness of his actions. His conduct at the pretrial hearing demonstrated no apparent behavior which would lead the court to believe he was not competent to stand trial. We conclude, therefore, that counsel was not ineffective in failing to seek an independent psychiatric examination. The second assignment of error is not well taken. In his third assignment of error, White argues his plea was not entered into voluntarily, intelligently or knowingly. Before entering a plea, a defendant must be advised of basic constitutional rights pursuant to Crim. R. 11(C), which provides in part: "(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: - 9 - "(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. "(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. "(C) Informing him and determining that he understands that by his plea he is waiving his right to jury trial, to confront witnesses against him, too have compulsory process for obtaining witness in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. " A defendant must be informed about these rights before accepting a plea which waives them. State v. Ballard (1981), 66 Ohio St. 2d 473. A trial court need not use the exact language of Crim. R. 11(C) to inform a defendant of his constitutional rights but need only explain them "in a manner reasonably intelligent to that defendant." Id. at paragraph two of syllabus, citing State v. Caudill (1976), 48 Ohio St. 2d 342, modified. Substantial compliance with Crim. R. 11(C), however, is required when accepting a guilty plea, State v. Flint (1986), 36 Ohio App. 3d 4; State v. Stewart (1977), 51 Ohio St. 2d 86, and a determination of that is made from the totality of the circumstances. State v. Carter (1979), 60 Ohio St. 2d 34. The defendant contends his plea was not voluntary in light of the fact that he initially entered a guilty plea and his lawyers "coerced" him to change his plea. White also argues the voluntariness of the plea is drawn into question by the court's - 10 - failure to conduct an independent psychiatric evaluation regarding his sanity and competency to stand trial. We note that the court ruled that White was competent to stand trial. He elected to go forward. It was after trial commenced that White indicated his desire to accept the prosecutor's plea bargain. The court then fully explained to him all of his constitutional rights pursuant to Crim. R. 11(C). White responded that he understood the panoply of his rights. We also recognize that although White, on previous occasions, refused to plea bargain because of his firm belief he acted in "self-defense," his lawyer did not share this opinion, and stated for the record that, as an officer of the court, he could not proceed with such a defense. Both of White's lawyers assured the court they would defend their client ethically and to the best of their ability. The record discloses nothing that would affect the voluntariness of White's plea. We conclude that his plea was made voluntarily, knowingly and intelligently. The third assignment of error is overruled and the judgment of the trial court is affirmed. - 11 - Judgment affirmed. 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. DYKE, P.J., PATTON, J., CONCUR. JUDGE ANN McMANAMON 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. - 12 - APPENDIX Appellant's assignments of error are: I "It was prejudicial error for the trial court to accept defendant's guilty plea to murder where defendant previously pled not guilty by reason of insanity, was found to be indigent, was granted a request to be referred to an independent psychiatrist, but was not examined by said independent psychiatrist." II "Defendant was subjected to ineffective assistance of counsel where indigent defendant requested and was granted referral to an independent psychiatrist, but counsel failed to effect an examination and report by said independent psychiatrist." III "Defendant's guilty plea to murder is null and void where it is unknowingly, involuntarily and unintelligently made." IV "The court erred in not accepting the court psychiatrist's competency report and in finding defendant competent to stand trial where said competency report is inconclusive and defendant was not examined by an independent psychiatrist." .