COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71001 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION LEMONDES HARNEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 1, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-326692 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES KEVIN M. SPELLACY, ESQ. Cuyahoga County Prosecutor McGinty, Gibbons & Hilow RALPH KOLASINSKI, Assistant Co., L.P.A. Prosecuting Attorney 1375 East Ninth Street 1200 Ontario Street Suite 1920 Cleveland, Ohio 44113 Cleveland, Ohio 44114 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Lemondes Harney appeals from his conviction following a guilty plea to two counts of rape (R.C. 2907.02). Defendant claims his guilty plea was not knowingly made because of his diminished mental capacity. We find no error and affirm. On August 1, 1995, defendant was indicted for the rape of two minor children with a penalty enhancement for use of force or threat of force. He pled not guilty at his arraignment. He was referred to the court psychiatric clinic which found him to be sane and competent to stand trial. On November 3, 1995, defendant entered into a plea agreement with the State and, after being fully advised of his constitutional rights, pled guilty to the two amended counts of rape, without the penalty enhancement language of "force or threat of force." He was referred to the probation department for a pre-sentence investigation report, as well as a psychiatric mitigation report. On November 28, 1995, defendant was sentenced to a term of incarceration of 9 to 25 years on each count, the time to be served concurrently. On August 19, 1996, this Court granted the defendant a delayed appeal. Defendant's sole assignment of error states: - 3 - I. THE TRIAL COURT ERRED BY ACCEPTING LEMONDES HARNEY'S GUILTY PLEA, AS THE PLEA WAS NOT KNOWINGLY MADE AND THUS NOT IN COMPLIANCE WITH CRIMINAL RULE 11(C). Defendant argues that the trial court erred in accepting a plea that was not "knowingly" made in violation of Crim.R. 11(C), because the record indicates that defendant's "below average mental capabilities negate the voluntariness of Appellant's Plea." (Aplt's Brf. at 2). However, the record is clear that defendant was both competent and sane and his plea was given knowingly and willingly. Pursuant to R.C. 2945.371, defendant was referred to the court psychiatric clinic for examination and report as to his competency to stand trial and sanity at the time of the acts. The report found defendant not to be suffering from any mental disease and that he was competent to stand trial. This Court has held that the test for mental competency to stand trial and the test for mental capacity to plead guilty are the same. State v. Tong (March 10, 1994), Cuyahoga App. No. 64903, unreported; State v. Marsh (March 10, 1994), Cuyahoga App. No. 64830, unreported. The defendant did not contest the two reports and "accepted" the finding of defendant's competency and sanity. The issue of defendant's "below average mental capabilities" was raised solely for the purposes of mitigation following defendant's plea. R.C. 2945.36(A) states that a criminal defendant is presumed competent to stand trial unless it is established that he is unable to understand the nature of the proceedings and cannot assist in - 4 - his defense. "The term 'mental illness' does not necessarily equate with the definition of legal incompetency." State v. Berry (1995), 72 Ohio St.3d 354, syllabus. The Ohio Supreme Court has stated that mere emotional or mental instability is not the same as incompetency: "A defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel." State v. Bock (1986), 28 Ohio St.3d 108, 110. See, also, State v. Swift (1993), 86 Ohio App.3d 407; State v. Tong (March 10, 1994), Cuyahoga App. No. 64903, unreported; State v. Walker (Sept. 12, 1994), Cuyahoga App. No. 65794, unreported. Further, a defendant is not incompetent merely because he or she is receiving psychotropic drugs under medical supervision. State v. Marsh (March 10, 1994), Cuyahoga App. No. 64830, unreported. The defendant's "mental capabilities" were fully understandable to the trial court judge based upon the competency and sanity reports prior to the plea. "Below average mental capabilities" do not negate the voluntariness of a defendant's plea. Crim.R. 11 does not impose upon the trial court any specific obligation to ascertain a defendant's level of sophistication or level of intelligence. State v. Grotto (Sept. 21, 1989), Cuyahoga App. No. 54663, unreported. A low or borderline I.Q. does not by itself render a plea involuntary. State v. Dotson (March 26, 1992), Cuyahoga App. No. 60199, unreported. As we held in State v. Manos (Feb. 10, 1994), Cuyahoga App. No. 64616, unreported: - 5 - There is no easy or exact way to determine what someone subjectively understands. If a defendant receives proper information, it can ordinarily be assumed he understood that information. State v. Carter (1979), 60 Ohio St.2d 34, 38. Further, under the totality of the circumstances, a trial court may be justified in concluding that a defendant has drawn an understanding from sources other than the trial court. State v. Rainey (1982), 3 Ohio App.3d 441, 442. The court below went to great pains to explain defendant's constitutional rights and to determine that defendant understood and was voluntarily waiving those rights by entering a guilty plea to the reduced counts per the plea agreement. We find no statutory requirement that the court has to specifically inquire whether defendant was on drugs, alcohol or medication that would impair his understanding. Nor does the court have to give an intelligence test to determine that the defendant understands the English language or the import of his plea. See, also, State v. Stewart (1991), 75 Ohio App.3d 141, 148 (Evidence of low educational achievement or low I.Q. does not in and of itself render a defendant incapable of voluntarily waiving his Miranda rights). Furthermore, neither defendant nor his counsel moved for a competency hearing under R.C. 2945.37, nor did defense counsel suggest that defendant was incompetent to enter a guilty plea. The record is clear that the trial court did conduct the "recommended" dialogue as suggested by the Court in State v. Ballard (1981), 66 Ohio St.2d 473, and did, in fact, determine that the defendant was "informed," "understood," and made his plea "knowingly, voluntarily and intelligently." The trial court, when - 6 - accepting a guilty plea, must substantially comply with Crim.R. 11. State v. Nero (1990), 56 Ohio St.3d 106, 108. Substantial compliance with Crim.R. 11(C) is determined upon a review of the totality of the circumstances. State v. Rainey (1982), 3 Ohio App.3d 441, 42. The underlying purpose of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty. State v. Ballard, supra, at 479. Although defendant twice indicated he was "not sure" about entering his plea, the court stopped proceedings to allow further inquiry off the record. Following those discussions, the defendant indicated his willingness to plead. State v. Martin (May 26, 1977), Cuyahoga App. No. 36083, unreported (Defendant's initial protestations that he was "not sure" of his plea did not invalidate the plea where defendant was allowed additional time to consult with his attorney). The trial court properly complied with Crim.R. 11(C) because the trial court was fully aware, based upon the sanity and competency evaluations prior to the plea, of the defendant's mental state and resolved any doubts by colloquy when accepting the plea. Defendant's sole assignment of error is overruled. Judgment affirmed. - 7 - 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. PATTON, J., CONCURS. O'DONNELL, J., CONCURS WITH SEPARATE CONCURRING OPINION. JAMES M. PORTER PRESIDING 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71001 : STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : : OPINION vs. : : : LEMONDES HARNEY : : : Defendant-Appellant : : DATE: MAY 1, 1997 O'DONNELL, J., CONCURRING: Crim. R. 11 requires the trial court to determine whether a criminal defendant's plea had been knowingly, intelligently and voluntarily entered before a finding of guilt may be journalized. A review of the record in this case reflects the court substan- tially complied with Crim. R. 11 as required by State v. Nemo .