COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71758 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION KIMMIE WILSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 23, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-325054 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ROBERT A. DIXON, ESQ. Cuyahoga County Prosecutor 1280 W. Third Street MELODY A. WHITE, ESQ. Suite 100 Assistant County Prosecutor Cleveland, Ohio 44113 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: -2- This is a delayed appeal by appellant Kimmie Wilson of her conviction for killing her two year old daughter, Sh-Keisha Long. The appellee State of Ohio charged Wilson with aggravated murder, felonious assault, two counts of child endangering with a violence specification, and intimidation. After plea-bargaining, Wilson pled guilty to murder, two counts of child endangering, and intimidation. The State of Ohio dropped the other charges, and the trial court sentenced her to fifteen years to life. Wilson assigns the following errors challenging the trial court's decision: I. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE WAS PERMITTED TO ENTER A PLEA OF GUILTY DESPITE COUNSEL'S CONCERN THAT THE APPELLANT MAY HAVE SUFFERED FROM A MENTAL DISEASE OR DEFECT AND THAT SHE MAY NOT HAVE UNDERSTOOD THE WRONGFULNESS OF HER CONDUCT. II. THE LOWER COURT ERRED AND DENIED THE APPELLANT DUE PROCESS OF LAW WHEN IT ACCEPTED THE APPELLANT'S PLEA TO THE OFFENSE OF MURDER WITHOUT FIRST CONDUCTING A HEARING TO DETERMINE THE APPELLANT'S MENTAL CONDITION. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Kimmie Wilson admitted to the police that she caused the death of her two year old child, Sh-Keisha Long. According to the prosecution, Deputy Coroner Dr. Challener concluded she was viciously pummeled to death. The prosecutor surmised she was kicked to death. The record showed a history of neglect and abuse by Wilson towards Sh-Keisha. Wilson was indicted and pled not guilty. She never invoked an insanity plea. On August 21, 1995, Wilson was referred to a court -3- psychiatric clinic for a sanity and a competency evaluation to determine her fitness to stand trial. She was evaluated by Dr. Nancy J. Huntsman. Dr. Huntsman determined Wilson was not insane at the time of the offense and was competent to stand trial. At the competency hearing on November 1, 1995, Wilson's attorneys, Mr. Carson and Mr. Keller, and the prosecutor, stipulated to Dr. Huntsman's finding. Thereafter, Mr. Carson made the following statement on the record: The part that I took issue with is the statement, the very last statement that was made by Nancy J. Huntsman that Miss Wilson did not suffer from a severe mental disease or defect and that she did know the wrongfulness of acting as it has been alleged she acted. I did have a problem with that statement. But not withstanding that, Judge, we would accept the opinion that she is competent to stand trial and she was not, according to the definition of insanity at the time of the act, insane at the time of the act. (Tr. 3-4.) (Emphasis added). The Court then entered a finding that Wilson was competent and sane to stand trial based upon the psychiatric report and the attorneys' stipulations. Thereafter, the prosecutor informed the court that the parties had reached a plea agreement. After determining Wilson understood the consequence of waiving her right to a trial, the Court accepted Wilson's guilty plea. The pre- sentence investigation was waived at the request of Wilson's counsel. Subsequently, Wilson was sentenced to concurrent terms of fifteen years to life for the murder charge, three to five years for each count of child endangering, and two years for intimidation. -4- We will discuss Wilson's second assigned error first. Wilson argues she was entitled to a hearing on her mental condition. The record shows that the case was scheduled for a hearing on the issue of competency and Wilson's lawyers stipulated to the report and waived any further sanity and competency arguments. In resolving this error, our approach is governed by State v. Rubenstein (1987), 40 Ohio App.3d 57 at paragraph 4 of the syllabus. In Rubenstein, we held the hearing requirement of R.C. 2945.37(A) is satisfied where prior to the commencement of trial the defendant has been provided with an opportunity to present evidence on his behalf but instead elects to accept the findings contained in the psychiatric report. Wilson's lawyers reviewed the report and accepted the findings. Accordingly, we conclude Wilson's second assigned error lacks merit. Wilson argues in her first assigned error that her lawyers were ineffective. The prosecutor responds by putting forth the plea agreement. Although this court has held that failure of defense counsel to refer the appellant for a psychiatric evaluation and failure to enter a written plea of not guilty by reason of insanity is ineffective, we have never adopted a per se rule that waiver of a challenge to a court psychiatric report or failure to request an independent referral constitutes ineffective assistance of counsel. See State v. Brown (1992), 84 Ohio App.3d 414, 422. It is axiomatic that a claim of ineffective assistance of counsel must be raised with sufficient clarity to indicate a substantive violation of an essential duty. State v. Nabozny -5- (1978), 54 Ohio St.2d 195, 213. This means that the defendant must show deficient performance and prejudice. Both showings must be made. Id., citing State v. Lytle (1976), 48 Ohio St.2d 391, 396- 397; Strickland v. Washington (1984), 466 U.S. 668, 697; State v. Bradley (1989), 42 Ohio St.3d 136, 141-142. In applying this test to the facts herein, we cannot conclude that Wilson's lawyers' conduct was deficient or prejudicial. Deficient performance means that the lawyers' conduct is so serious as to deprive Wilson of a fair trial, a trial whose results are reliable. Strickland, supra, at 687. The record in this case showed that Wilson was sane and competent. The doctor's report verified this conclusion. The trial court conducted a hearing wherein Wilson's lawyers stipulated to the findings of the psychiatric report. The decision of Wilson's lawyers to stipulate to the findings may have been in her best interest in light of the plea bargaining agreement. Wilson argues her lawyers should have gotten a second opinion to challenge the report. This argument is based on the fact that Attorney Carson pondered out loud his dissatisfaction with Dr. Huntsman's conclusion. We conclude his pondering without additional information was insufficient to cause the court to ignore Dr. Huntsman's report, to disregard the stipulation, and to order additional testing. See State v. Rubenstein, supra, 60-61. Wilson argues her lawyers should have taken other steps to protect her rights. We believe they did everything necessary to protect her rights. They plea bargained in order for her to -6- receive a concurrent sentence on the charges, which she received. Thus, we conclude their conduct was not deficient. Assuming arguendo that it was, we conclude that she was not prejudiced. She argues that the prejudice occurred in not asking for an independent referral. The burden is on her to show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, supra, at 694. Here the doctor's report concluded that she was sane and competent to stand trial. No other result can be gleaned from this record. Furthermore, a defendant does not have an absolute right to an independent psychiatric evaluation. State v. Marshall (1984), 15 Ohio App.3d 105. In State v. Brown, supra, we held it was ineffective for counsel not to have challenged a court psychiatric report where the evidence showed a history of substance abuse, a product of an abusive environment from the defendant's father, and the defendant's loss of memory. No such evidence similar to that in Brown was put forth in this case. Here, the trial court conducted a competency hearing, the lawyers stipulated to the court psychiatric reports, and the court found Wilson sane and competent to stand trial. Accordingly, we conclude that the first assigned error lacks merit. In the prosecutor's brief, Wilson was characterized as a lying, despicable piece of flesh only masquerading as a human being. This was presented as a part of the state's argument. We believe that not only is this unpersuasive argument, but it is woeful, unacceptable brief writing. Nevertheless, judgment is affirmed. 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. KARPINSKI, J., and MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .