COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68731 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : EARL R. ELSWICK, JR. : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-282823. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael S. Nolan, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Edward S. Wade, Jr., Esq. 75 Public Square, Suite 1210 Cleveland, OH 44113 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Earl Elswick, Jr., defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Case No. CR-282823, for the offense of rape, in violation of R.C. 2907.02. Defendant- appellant assigns three errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On June 15, 1992, Earl Elswick, Jr., defendant-appellant, was indicted by the Cuyahoga County Grand Jury for one count of rape with a firearm specification, one count of gross sexual imposition with a firearm specification, one count of felonious sexual penetration with a firearm specification and one count of kidnapping with a firearm specification. Defendant-appellant was arraigned on July 7, 1992 whereupon a plea of not guilty was entered as to all counts contained in the indictment. On July 10, 1992, defendant-appellant was referred by the trial court to the Cleveland Psychiatric Institute for a competency and sanity examination. On September 3, 1992, defendant-appellant's counsel filed a motion for a second psychiatric evaluation which was granted by the trial court on September 14, 1992. On December 16, 1992, after having obtained leave from the trial court, defendant-appellant amended his previously entered plea of not guilty to a plea of not guilty by reason of insanity. -3- On January 13, 1993, the trial court conducted a hearing to determine defendant-appellant's competency to stand trial. At the hearing, the only witness to testify was Dr. Deborah Plummer, Ph.D., from the trial court's psychiatric clinic. Dr. Plummer testified that she examined defendant-appellant on August 5, 1992 for approximately one hour. Dr. Plummer stated that, as part of her examination, she reviewed defendant-appellant's social history, his specific medical records and collateral information consisting of police reports and a pre-interview document completed by defendant-appellant on August 11, 1992. Dr. Plummer stated further that the police records indicated that defendant-appellant was being administered Haldol and Cogentin in order to treat a condition designated as atypical psychosis, a mild mental retardation. Dr. Plummer, who was examining defendant-appellant specifically for a competency assessment, testified that defendant-appellant was able to maintain his concentration and attention for at least one hour, was able to converse with and understand his attorney and that, while defendant-appellant suffered from some form of hallucinations, they were reality based. Dr. Plummer stated further that her examination of defendant-appellant coupled with the results of defendant-appellant's MMPI (Minnesota Multistate Personality Inventory) test, suggested that possibly defendant- appellant was malingering (i.e., purposely directing the answers to the question in order to make it appear that his mental condition was worse than it really was). Dr. Plummer concluded her testimony -4- by stating with reasonable scientific certainty that defendant- appellant was competent to stand trial, was aware of the individual role of each person in the courtroom and was competent to assist in his own defense. Dr. Plummer also stated that defendant-appellant understood the meaning and nature of the term plea bargain after it was explained to him. Defendant-appellant was given a second psychiatric examination by Dr. Kurt Bertschinger whose report was entered into evidence the time of defendant-appellant's competency hearing by way of stipulation. Dr. Bertschinger's report also concluded that defendant-appellant was capable of assisting in his own defense and was competent to stand trial. The trial court then found defendant-appellant competent to stand trial. At this time, defendant-appellant withdrew his formerly entered plea of not guilty by reason of insanity and entered a plea of guilty to rape, as amended in Count I of the indictment to delete the age of the victim and the gun specification. This offense constituted an aggravated felony of the first degree. The remaining counts contained in the indictment were nolled upon the recommendation of the prosecuting attorney. On February 17, 1993, the trial court sentenced defendant- appellant to the Lorain Correctional Institution for a term of imprisonment of 9 to 25 years with 9 years minimum actual incarceration plus court costs. On December 1, 1994, defendant- appellant filed his first pro se motion for delayed appeal which was denied by the trial court. On March 27, 1995, defendant- -5- appellant filed his second motion for delayed appeal, for appointment of counsel and for a copy of the transcript at the state's expense. This court granted defendant-appellant's motion for delayed appeal on April 17, 1995 and the instant appeal followed. II. FIRST AND THIRD ASSIGNMENTS OF ERROR Earl Elswick, Jr., defendant-appellant's, first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY ACCEPTING HIS PLEA OF GUILTY TO RAPE AS AMENDED IN COUNT ONE OF THE INDICTMENT BECAUSE THE COURT FAILED TO ASCERTAIN THAT THE PLEA WAS GIVEN TO THE PARTICULAR CRIME CHARGED AND THE PLEA WAS MADE INTELLIGENTLY AND NOT GIVEN THROUGH IGNORANCE AND THUS DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Earl Elswick, Jr., defendant-appellant's, third assignment of error states: THE TRIAL COURT ERRED WHEN IT GRANTED DEFENSE COUNSEL'S MOTION TO WITHDRAW APPELLANT'S PLEA OF NOT GUILTY BY REASON OF INSANITY WHEN THE APPELLANT WAS PRESENT BEFORE THE COURT AND THE COURT FAILED TO INFORM THE APPELLANT OF HIS RIGHTS, IN VIOLATION OF HIS 14TH AMENDMENT RIGHT TO DUE PROCESS. Having a common basis in both law and fact, this court shall consider defendant-appellant's first and third assignments of error concurrently. Defendant-appellant argues, through his first and third assignments of error, that the trial court erred in allowing defendant-appellant to withdraw his plea of not guilty by reason of insanity and enter a plea of guilty to the amended charge of rape. Specifically, defendant-appellant -6- maintains that the trial court failed to adequately assure that defendant-appellant understood his constitutional rights at the time of the plea and failed to comply with the mandates of Crim.R. 11(C). Defendant-appellant's first and third assignments of error are not well taken. Crim. R. 11(C), which deals with a trial court's acceptance of a plea of guilty to a felony offense provides: (1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. (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: (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 rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses 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. -7- In order to comply with Crim.R. 11(C), a trial court must determine whether the defendant fully comprehends the consequences of his plea of guilty. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty. Adherence to the provisions of Crim.R. 11(C)(1) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea of guilty or no contest. (Emphasis added.) State v. Caudill (1976), 48 Ohio St.2d 343, paragraph two of the syllabus. In addition, the Supreme Court of Ohio has established that a trial court in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 51 Ohio St.2d 86, at 92. In the case sub judice, a review of Earl Elswick, Jr., defendant-appellant's, withdrawal of his not guilty by reason of insanity plea and plea of guilty to the offense of rape demonstrates the following: (1) defendant-appellant knowingly and voluntarily withdrew his original plea of not guilty by reason of insanity; (2) defendant-appellant was advised of the maximum term of incarceration that could be imposed by the trial court with regard to the offense of rape; -8- (3) defendant-appellant acknowledged that no threats or promises had been made in exchange for his plea of guilty; (4) defendant-appellant acknowledged his right to a trial by jury or judge, the right to confront all witnesses against him, the right to subpoena witnesses, the right to refuse to testify and the right to proof of guilt beyond a reasonable doubt; and (5) defendant-appellant acknowledged that, although he was taking Haldol and Cogentin for his mental condition, he was not under the influence of alcohol or any illicit drugs and he fully understood the nature of the plea he was entering, the effect of the plea and that he was entering the plea of his own free will. A complete examination of the record fails to support defendant-appellant's claim that his plea of guilty to the offense of rape was not voluntarily, knowingly and intelligently entered after a knowing withdrawal of his plea of not guilty by reason of insanity. State v. Carter (1979), 60 Ohio St.2d 34, 396 N.E.2d 757. In addition, the trial court substantially complied with Crim.R. 11(C) in accepting defendant-appellant's plea of guilty to the amended charge. Defendant-appellant's first and third assignments of error are not well taken. III. SECOND ASSIGNMENT OF ERROR -9- Earl Elswick, Jr., defendant-appellant's, second assignment of error states: DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Defendant-appellant contends he was denied the effective assistance of trial counsel. Specifically, defendant-appellant maintains that counsel failed to advise him of his right to a third psychiatric examination pursuant to R.C. 2945.371, failed to present evidence in support of defendant-appellant's plea of not guilty by reason of insanity and failed to inform defendant- appellant of the consequences of the withdrawal of his plea of not guilty by reason of insanity and his plea of guilty to the amended indictment. Defendant-appellant's second assignment of error is not well taken. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith -10- (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: "When considering an allegation of ineffective assistance of counsel, a two- step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981)." Strickland, supra, at 691. To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. *** -11- Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove 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, supra, at 141. Based upon this court's review of the record, defendant- appellant has failed to demonstrate that the performance of his attorney was seriously flawed or deficient. The number of psychiatric evaluations to be conducted is left to the sound discretion of the trial court. State v. Hicks (1988), 38 Ohio St.2d 129. Pursuant to R.C. 2945.371, the maximum number of psychiatric evaluation that can be ordered by the trial court is three. In the case sub judice, two psychiatric evaluations of defendant-appellant were conducted with each doctor reaching the same conclusion, that defendant-appellant was competent to stand trial. Under the circumstances, it cannot now be said that defense counsel was ineffective for failing to request a third psychiatric examination where there is no evidence to indicate that the results of the third examination would have differed in any way from the previous examinations. Contrary to defendant-appellant's assertion, defense counsel did in fact call an expert witness, Dr. Deborah Plummer, to testify on defendant-appellant's behalf. The fact that Dr. Plummer's testimony and report failed to support defendant- appellant's insanity defense does not lead one to conclude that defendant-appellant's counsel was ineffective. -12- Lastly, as this court has previously stated, there is no evidence anywhere in the record to support defendant-appellant's contention that he did not understand the nature and consequences of his withdrawal of the not guilty by reason of insanity plea and his plea of guilty to the amended indictment. In fact, defendant-appellant stated during the plea that he understood that he was pleading guilty to a reduced charge in exchange for the dismissal of the remaining counts contained in the indictment and also stated that he was satisfied with his attorney's representation. For the foregoing reasons, defendant-appellant has failed to overcome the presumption of competency of licensed defense counsel. State v. Smith, supra. Accordingly, defendant- appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -13- 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. JAMES D. SWEENEY, PRESIDING JUDGE DAVID T. MATIA, JUDGE ANN DYKE, 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 .