COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71956 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) CORNELL W. CHILDRESS, JR. ) ) Defendant-Appellant ) Date of Announcement of Decision NOVEMBER 26, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-284045 Judgment AFFIRMED Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES MICHAEL E. MURMAN, ESQ. Cuyahoga County Prosecutor 14701 Detroit Avenue GEORGE J. SADD, Assistant Suite 555 Prosecuting Attorney Lakewood, Ohio 44107 1200 Ontario Street Cleveland, Ohio 44113 2 JAMES M. PORTER, J.: Defendant-appellant Cornell W. Childress, Jr. appeals from his conviction following a guilty plea to murder (R.C. 2903.02) and attempted murder (R.C. 2923.02). Defendant asserts that the trial court erred in failing to hold a hearing on defendant's competency to stand trial and the record was insufficient to establish the culpable mental state necessary for the crime. We find no error and affirm. Defendant was indicted for aggravated murder (R.C. 2903.01) and attempted murder (R.C. 2923.02/2903.02), both with firearm specifications. Following a not guilty plea at arraignment, defendant was referred to the court psychiatric clinic for evaluation. Numerous pre-trials were scheduled in this matter, and on September 21, 1992, pursuant to a plea agreement, defendant entered a guilty plea to murder, as amended, deleting the aggravated and firearm specifications and to attempted murder, as amended, deleting the firearm specification. Defendant was sentenced to the Lorain Correctional Institution for a term of 15 years to life on the murder charge, and 10 to 25 years on the attempted murder charge, the sentences to be served concurrently. On February 19, 1997, this Court granted a delayed appeal, appointed counsel and allowed a transcript at State expense. Defendant's assignments of error will be addressed in the order asserted. I. THE TRIAL COURT ERRED HAVING FAILED TO HOLD A HEARING ON THE ISSUE OF APPELLANT'S COMPETENCY TO STAND TRIAL PURSUANT TO OHIO REVISED CODE SECTION 2945.37 OR OTHERWISE DETERMINE THAT 3 APPELLANT WAS COMPETENT TO WAIVE HIS CONSTITUTIONAL RIGHT TO A TRIAL AND CHANGE HIS PLEA, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. R.C. 2945.37(A) states that if the issue [of competency] is raised before trial, the court shall hold a hearing on the issue. R.C. 2945.37.1(A) states that if the issue of defendant's competence to stand trial is raised under S2945.37 of the Revised Code, the court may order one or more, but not more than three evaluations of the defendant's mental condition. In the present case, defendant was referred to the court psychiatric clinic for evaluation before he entered his guilty plea. The defendant was found competent to stand trial. This evaluation was accepted by his counsel pursuant to a journal entry of August 17, 1992, which stated: Reports of psychiatric clinic accepted by defense counsel. Defense counsel also accepted the report when he stated at the plea proceedings we have had access to psychological reports that ever assured us that Mr. Childress knows what he is doing here today, and that were defendant allowed to enter a guilty plea he would be doing so knowingly, intelligently and voluntarily. (Tr. at 5-6). This Court in State v. Britton (Oct. 6, 1994), Cuyahoga App. No. 66177, unreported, was confronted with the identical situation in which the trial court did not hold a competency hearing before accepting the defendant's guilty plea, although the court did refer the defendant for psychiatric evaluation. This Court held that counsel at the guilty plea hearing waived the competency issue by 4 accepting the psychologist's report and conceding that defendant was competent. Id. at 8. [ It is well established the hearing requirement of R.C. 2945.37(A) is satisfied when defendant has been afforded the opportunity to present evidence in his behalf but instead elects to accept the findings contained in the psychiatric report as in the case sub judice. ]. See, also, State v. Rubenstein (1987), 40 Ohio App.3d 57, 61, fn.4. In the case herein, defense counsel likewise accepted the psychiatric report and conceded that defendant was competent, thereby waiving the competency issue. This Court in State v. Britton also held that even if the issue was not waived, the argument still lacked merit as defendant's right to due process was not violated: Moreover, the United States Supreme Court has specifically rejected defendant's precise claim that failure to hold a competency hearing prior to accepting a guilty plea constitutes a denial of due process. U.S. ex rel. Smith v. Baldi (1953), 344 U.S. 561. The Supreme Court recognized defendant's opportunity to withdraw a guilty plea and subsequently raise an issue concerning his mental competency satisfied the requirements of due process. Id. at 567-568. ***. In the case herein, the defendant accepted the psychiatric report as indicated by the trial court's journal entry of August 16, 1997 and by defense counsel's statements at the plea hearing. Furthermore, any error in failing to hold a R.C. 2945.37(A) hearing was harmless beyond a reasonable doubt, as the record indicates defendant was competent and contains no indicia of incompetency. State v. Britton at 9; State v. Bock (1986), 28 Ohio 5 St.3d 108, 110; State v. Swift (1993), 86 Ohio App.3d 407, 410-412; State v. Bekez (1991), 75 Ohio App.3d 436, 441. Assignment of Error I is overruled. II. THE RECORD IS INSUFFICIENT TO SUPPORT THE CONVICTION FOR MURDER IN VIOLATION OF OHIO REVISED CODE SECTION 2903.02, WHERE THE COURT STATES THAT THE CULPABLE MENTAL STATE ELEMENT OF THE OFFENSE IS ABSENT AFTER ACCEPTING A GUILTY PLEA, THEREBY DEPRIVING THE APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. In his second assignment of error defendant contends that there was an insufficient factual basis for the plea as indicated by the trial court's statement at sentencing that it was unfortunate that the defendant was unaware of his actions at the time they were committed. Defendant claims that based on this statement, the mens rea required for the offenses was absent. This assignment of error has no merit. The trial court has no duty to ascertain if there is a factual basis for a guilty plea unless the defendant makes protestations of innocence. State v. Post (1987), 32 Ohio St.3d 380,387; State v. Casale (1986), 34 Ohio App.3d 339, 340, fn. 1; State v. Ricks (1976), 48 Ohio App.2d 128, 131. A plea of guilty is a complete admission of the defendant's guilt. State v. Guyton (1984), 18 Ohio App.3d 101, 102. As the court in State v. Siders (1992), 78 Ohio App.3d 699, 701 held: Appellant's argument, that there was insufficient evidence to support a conviction of the firearm specification, is extra- ordinarily inappropriate. Appellant pled guilty to the specification after being 6 advised of his rights. Appellant does not argue, nor does the record support a finding, that his plea was not knowing and voluntary. If the evidence against appellant was weak, he should have proceeded to trial. In light of his waiver of trial and plea of guilty to the specification, this court will not entertain his argument which is based upon the weight of the evidence. Crim R. 11(B). As the Supreme Court of the United States noted, in Menna v. New York (1975), 423 U.S. 61, at 62, 96 S.Ct. 241, at 242, 46 L.Ed.2d 195 at 198, fn.2: *** a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. Likewise, in the case herein, if defendant believed the case against him was weak, he should have proceeded to trial. A review of the record indicates that defendant's plea was entered voluntarily and intelligently and the dictates of Crim.R. 11(C) were followed; therefore, there is no basis for reversing his guilty plea. Assignment of Error II 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. DAVID T. MATIA, P.J., and PATTON, J., CONCUR. JAMES M. PORTER 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 .