COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70054 and 70055 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : SAMUEL BOWEN : PER CURIAM : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 12, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case Nos. CR-314196 and CR-315359 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DONALD BUTLER, ESQ. Cuyahoga County Prosecutor 75 Public Square JOHN F. CORRIGAN, ESQ. Suite 1111 Assistant County Prosecutor Cleveland, Ohio 44113 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: Defendant-appellant, Samuel Bowen, appeals his convictions for breaking and entering and abduction. He assigns the following errors for our review: I. THE TRIAL COURT ERRED IN NOT ORDERING A SECOND PSYCHIATRIC EVALUATION TO DETERMINE APPELLANT'S COMPETENCY TO STAND TRIAL AND/OR ENTER A CHANGE OF PLEA. II. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT'S CHANGE OF PLEA DUE TO DEFECTS THAT CAUSED THE PLEA TO BE LESS THAN KNOWING AND VOLUNTARY. III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Bowen was indicted for breaking and entering, theft, and kidnapping. On February 28, 1995, he appeared before the court with counsel and entered pleas to breaking and entering and abduction. The trial judge engaged Bowen in dialogue on the record to determine whether his plea was knowingly, intelligently, and voluntarily made. In pertinent part, the court inquired as follows: THE COURT: Are you currently under the influence of any medication or drugs which would impair your ability to understand the nature of today's proceedings? THE DEFENDANT: I'm under medication, but I understand. THE COURT: You understand what's happening here - 3 - today? THE DEFENDANT: Yes, ma'am. * * * THE DEFENDANT: Sending me to the psychiatrist? THE COURT: Well, no. I did that already. I'm going to send you down to our probation department today. They will take a urine specimen which they will test for controlled substances. So make sure you tell them what medication you're on, okay? THE DEFENDANT: Yes. THE COURT: Do you have your medication with you? THE DEFENDANT: No. THE COURT: Well, you make sure you tell them. You might want to follow up to make sure, Mr. Russo, that they know exactly what medication he is on for the urine test, okay? The journal entry from the February 28, 1995 hearing reflects the trial court referred Bowen to the court psychiatric clinic for a mitigation report. However, the transcript does not reflect whether Bowen was informed about the referral. After accepting his plea, the trial court continued the case for sentencing. At the sentencing hearing, he was represented by Santo Incorvaia as well as Russo, and the following dialogue took place: THE COURT: Gentlemen, you had an opportunity to review the presentence investigation report? MR. INCORVAIA: Yes, your Honor. MR. RUSSO: I have, your honor. THE COURT: Court also notes that I did refer this defendant, pursuant to 2947.06, to the court psychiatric clinic for a mitigation report, and the defendant did not show up for said appointment. Therefore, there's been no evaluation from the court - 4 - psychiatric clinic. Mr. Russo or Mr. Incorvaia, is there any additions, corrections, deletions to the presentence investigation report that you would like to point out to the Court? Mr. Russo? MR. RUSSO: Your Honor, he claims that he was not told to go to the psych department. He did go to the probation department. THE COURT: Okay. Fine. MR. RUSSO: He had gone to the psych department in the past. THE COURT: Letter was signed by Dr. Plummer, date March 22nd. He was scheduled to be seen by her that morning. He did not keep his appointment. THE DEFENDANT: I wasn't told. And every time I come here, I kept every appointment that there was, that I was told to keep. But I wasn't told about going to see a psychiatrist, otherwise I would have went. MR. RUSSO: I asked for another referral at the time, your Honor, because -- THE COURT: I thought you did on February 28th. MR. RUSSO: We went back to the hospital. THE COURT: I thought on the day of his plea you asked for the referral, and I granted it at that time. MR. RUSSO: Yes, your Honor. In mitigation of sentence, Russo and Incorvaia urged the trial court to take into consideration his mental health problems. The trial court sentenced Bowen to a term of fifteen years of incarceration for abduction and ordered that he be evaluated for psychiatric treatment during the course of his confinement. The trial court also sentenced Bowen to a concurrent term of twelve months for breaking and entering. This appeal followed. - 5 - In his first assignment of error, Bowen argues the trial court erred when it failed to order a second psychiatric evaluation to determine whether he was competent to stand trial or enter a change of plea. We disagree. R.C. 2945.371 provides: "(A) If the issue of a defendant's competence to stand trial is raised under section 2945.37 of the Revised Code, the court may order one or more, but not more than three evaluations of the defendant's mental condition.***" The use of the word "may" implies the trial court is not required to order an evaluation of the defendant's mental condition every time the issue is raised. State v. Bailey (1992), 90 Ohio App.3d 58, 67. Thus, the standard of review is abuse of discretion. Bowen asserts once the trial court discovered he had a history of mental illness and had been diagnosed with paranoid schizo- phrenia and psychosis, a second psychiatric evaluation should have been ordered as requested. Bowen's argument is premised upon the claim that his competency was raised as an issue at his plea hearing and/or at his sentencing. This premise is fallacious. The issue of Bowen's competency to stand trial was raised neither at the plea hearing nor at the sentencing. The journal entry from the plea hearing reflects Bowen was referred to the court psychiatric clinic for a mitigation report. The transcript reveals the referral was not on the record. At the sentencing hearing, Bowen stated that he failed to appear at the psychiatric clinic because no one told him about the referral to the clinic. Moreover, the referral missed by Bowen was not for a competency evaluation, but - 6 - for a mitigation report. It would seem the issue of whether Bowen was competent to stand trial had been abandoned by the time he appeared for sentencing. Consequently, the trial court did not commit reversible error. Bowen also asserts he was denied the opportunity of having his competency evaluated by a specialist and suggests his right to due process of law was violated. A defendant's competency to stand trial raises a question of due process of law, Bishop v. United States (1956), 350 U.S. 961, which is satisfied when the trial court conducts a competency hearing within the meaning of R.C. 2945.37. The hearing requirement is satisfied when the defendant is given an opportunity to present evidence on the issue. Bailey at 67. However, a court-ordered psychiatric evaluation may be accepted in lieu of a competency hearing. State v. Rubenstein (1987), 40 Ohio App.3d 57, 61 fn. 4. Nonetheless, a court-ordered psychiatric evaluation is not required in order to satisfy a defendant's right to due process of law. In reviewing the facts of this case, it is clear Bowen's competency to stand trial was neither at issue at his plea hearing nor his sentencing. It is also clear the failure of the trial court at the sentencing to order a psychiatric evaluation to determine his competency to stand trial did not implicate his right to due process of law. Accordingly, there was no abuse of discretion. In his second assignment of error, Bowen argues the trial court erred in accepting his guilty plea because it was less than - 7 - knowing and voluntary. Crim.R. 11(C) provides: *** (2) In felony cases the court may refuse to accept a plea of guilty or a pleas 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. *** The standard for reviewing whether or not the trial court accepted a plea in compliance with Crim.R. 11(C) is a de novo standard of review. It requires an appellate court to review the totality of the circumstances and determine whether the plea hearing was in substantial compliance with Crim.R. 11(C). E.g. State v. Stewart (1977), 51 Ohio St.2d 86, 92-93. Substantial compliance with Crim.R. 11(C) requires the trial court to engage the defendant on the record in a "reasonably intelligible" dialogue. See, e.g., State v. Ballard (1981), 66 Ohio St.2d 473. Bowen asserts his guilty plea was not knowing and voluntary because he was on medication. A trial court may determine the defendant understands his plea by considering the surrounding circumstances such as the dialogue between the court and the defendant and the defendant's demeanor. See State v. Swift (1993), 86 Ohio App.3d 407, 411, 412. However, the mere fact that the defendant was on medication was not an indication his plea was not knowing and voluntary. State v. Roberson (Jan. 19, 1995), Cuyahoga App.No. 66523, unreported. - 8 - In Roberson, the defendant was on medication, but stated the medication would not impair his ability to reason and make an informed decision. In this case, Bowen stated he was on medication, but indicated he understood "what was happening." Bowen also participated in a "reasonably intelligible" dialogue with the trial court. Accordingly, we conclude the trial court substantially complied with Crim.R. 11(C), and Bowen's plea was knowing and voluntary. In his third assignment of error, Bowen argues he was denied effective assistance of counsel because trial counsel failed to request the trial court to rule upon his competency to stand trial. The standard of review for effective assistance of counsel is a two-part test and is set forth in Strickland v. Washington (1994), 466 U.S. 668. See, also, State v. Bradley (1989), 42 Ohio St.3d 136. "***[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland at 687-688. The defendant must also prove "***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." Id. at 694. It is clear defense counsel decided not to pursue the competency to stand trial issue and the record indicates Bowen had a history of mental illness which could have been further explored. Thus, counsel's representation may have fallen below an objective standard of reasonableness. However, no evidence was presented - 9 - that would tend to suggest Bowen was impaired in any way at the time he entered his guilty plea. Thus, there is no basis for concluding with "reasonable probability that but for counsel's errors, the result of the proceeding would have been different." Id. Accordingly, we conclude Bowen was not denied effective assistance of counsel. Judgment affirmed. - 10 - 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. PATRICIA ANN BLACKMON, PRESIDING J. DAVID T. MATIA, JUDGE DIANE KARPINSKI, JUDGE "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .