COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70799 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RANDY McDOWELL : : Defendant-Appellant : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION JANUARY 16, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-294365 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES NICHOLAS K. THOMAS, ESQ. Cuyahoga County Prosecutor 21801 Lakeshore Blvd. EDWARD M. WALSH, Assistant Euclid, Ohio 44123 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Defendant-appellant Randy McDowell appeals from his conviction following a guilty plea to one count of felonious sexual penetration (R.C. 2907.12). Defendant contends he was deprived of his constitutional right to effective assistance of counsel because at the time he pled pursuant to a plea agreement he was suffering from a mental illness and not capable of knowingly and voluntarily entering the plea. Defendant was indicted on three counts of rape and one count of felonious sexual penetration. The State agreed to dismiss the rape counts for a plea to felonious sexual penetration. After the plea was presented, the trial court inquired of defendant as follows: COURT: You're not on any medication? DEFENDANT: Yes COURT: What's that? DEFENDANT: Pamelor, a nortiptyline, Cogentin and Haldol. COURT: What do you take Haldol for? You've been having some hallucinations? DEFENDANT: Yes. I've been out to Brecksville where they got me on regular drug and alcohol programs, psychological programs. (Tr. at 6). - 3 - Although the defendant represented to the court that his mental state was okay, the following exchange occurred in the plea session: COURT: So in the past -- we're going back almost three months now, or excuse me, two months now -- you had some trouble with voices, and you were out at Brecksville and you haven't had any trouble with voices lately, have you? DEFENDANT: Yes, I still have them. COURT: You do? DEFENDANT: Yes. COURT: Do they cause you any trouble? DEFENDANT: Well, I try to ignore them as best I can. (Tr. at 8). Defendant's sole assignment of error states as follows: I. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. Defendant faults his counsel for failing to seek a competency hearing for defendant before entering the guilty plea. We find no error and affirm. Crim.R. 11(C) provides: (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 - 4 - 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. Defendant 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. See, also, State v. Bowen (Dec. 12, 1996), Cuyahoga App. No. 70054/70055, unreported; State v. Bembry (Sept. 19, 1991), Cuyahoga App. No. 59155, unreported. 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, defendant stated he was on - 5 - medication, but indicated he understood "what he was doing." Defendant participated in a "reasonably intelligible" dialogue with the trial court, as the following colloquy discloses: COURT: Well, the real issue, Mr. McDowell, is: Do you know what you're doing here today? DEFENDANT: Yes. * * * COURT: You feel competent and confident here today and you can go forward with plea discussions? DEFENDANT: Yes. COURT: I'm going to proceed on that basis then. In any event, you don't have a history of mental or emotional disturbances that make you unable to make sound, thoughtful decisions, do you? DEFENDANT: No. * * * COURT: So my question to you is: There is nothing as you stand here today that's causing you to have a blurred vision right now? DEFENDANT: No. COURT: Nothing is impairing your hearing right now, correct? DEFENDANT: Right. COURT: Nothing is getting in the way of you having a clear head right now, correct? DEFENDANT: Right. - 6 - (Tr. at 9, 10, 12, 13). Accordingly, we conclude the trial court substantially complied with Crim.R. 11(C) and defendant's plea was knowingly and voluntarily made. 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. Defendant's reliance on State v. Brown (1992), 84 Ohio App.3d 414, is misplaced. In Brown, trial counsel was found to be ineffective for failing to enter a plea of not guilty by reason of insanity, where the defendant had no recollection of life for a period of several days, and no recollection of crimes of which he was accused. Defendant's last memory was of speaking to his mother whom he believed was buried at a service station and defendant recalled a need to find a shovel so he could properly bury her at a cemetery. Defendant then woke up in the county jail psychiatric unit. In spite of this bizarre behavior, Brown was never referred - 7 - for a competency evaluation - only as to sanity at the time of the act. The facts of the instant case reflect no suggestion of insanity at the time of the act, or incompetency to stand trial. The trial court was in the best position to observe the demeanor and responses of defendant. The court thoroughly and repeatedly questioned defendant about his understanding of the proceeding and was able to make an independent analysis of defendant's physical and mental condition and the effect, if any, his condition had on the voluntariness of his plea. The court was also entitled to rely on representations of defense counsel as reflected in the record at pages 9 through 11. State v. McClay (July 14, 1988), Cuyahoga App. No. 52392, unreported; State v. McDowell (Sept. 30, 1993), Erie App. No. E-92-78, unreported. There was no evidence presented that would tend to suggest defendant was impaired in any way at the time he entered his guilty plea. There is, therefore, 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 defendant was not denied effective assistance of counsel. Defendant's sole assignment of error is overruled. Judgment affirmed. - 8 - 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 Court of Common Pleas 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 M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE JOSEPH J. NAHRA, 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 journalization of this court's announcement of decision by the .