COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72989 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DONNIE BALLARD : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-351017. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Rebecca J. Maleckar Assistant County Prosecutor The Justice Center 1200 Ontario Avenue Cleveland, Ohio 44113 For Defendant-appellant: Patricia J. Smith, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- SWEENEY, JAMES D., J.: Defendant-appellant Donnie Ballard (d.o.b. September 7, 1957) appeals from the trial court's denial of a pretrial motion to conduct a mental competency evaluation and the trial court's failure to fully inform defendant of his rights pursuant to Crim.R. 11 prior to defendant testifying at trial. For the reasons adduced below, we affirm. A review of the record on appeal indicates that defendant was indicted on May 27, 1997, of one count of Drug Law (R.C. 2925.11), possession of less than five grams of cocaine, and pled not guilty at his arraignment. On July 7, 1997, the date scheduled for trial, the trial court attempted to impanel a jury. Prior to the prospective jurors being brought into the courtroom, defendant informed the court in a heated exchange that he did not wish to proceed, was dissatisfied with his counsel, and that the proceedings were racially motivated and were nothing more than a high tech lynching. (R. 10.) The court informed him that the trial was going to proceed as scheduled and that the defendant would be placed in the holding cell during the course of the trial if he did not calm down. Unwilling to comply with the admonition, defendant was placed in the holding cell with the assistance of sheriff's deputies. (R. 11.) A short time later the defendant was returned to the court. The defendant, though instructed, refused to stand as the jury was brought in and seated, and further informed the court that he did not want to proceed with the trial, particularly with the counsel -3- he had been assigned. After another heated exchange with the court, the defendant, after a violent struggle in the courtroom with deputies and police officers, was gagged by order of the court. (R. 15.) At that point, the defendant was removed from the courtroom and that jury dismissed. Some time later, the defendant was returned to the courtroom, outside the presence of any jury, and defendant's counsel orally requested that defendant be referred for competency testing, and also requested that defense counsel be permitted to withdraw from representation. (R. 17.) The trial court denied counsel's requests. Next, defense counsel, having some concern with their client's reluctance to speak with counsel, requested that the trial court voir dire the defendant to determine whether the defendant wished to remain in the courtroom during the trial proceedings and whether the defendant intended to testify during the trial. (R. 20.) The following colloquy then occurred: THE COURT: All Right. Thank you. Mr. Ballard, do you intend to testify? You have an absolute right not to testify, and if you choose not to testify, no one, that includes myself, the prosecutors, your attorneys, anyone can comment to the jury that you didn't testify and that they should infer that you are guilty as a result of that. In other words, if you choose not to testify, they can't argue, or no one can say to the jury Mr. Ballard must be guilty, otherwise he would have testified. So it's up to you. Have you given any thought as to whether or not you're going to testify in this matter? -4- THE DEFENDANT: Yes, I gave it some thought. THE COURT: And what would you like to do, Mr. Ballard? THE DEFENDANT: I'm pleading guilty. I'm getting it over with. * * * (R. 20-21.) Thereafter, the court explored the possibility of a plea bargain, but would not accept an agreed sentence. In short, a plea bargain on defendant's terms was not acceptable to the court, so defendant, after a short recess, stated that he wished to have a trial. The court then ordered the new jury to be brought into the room so that the trial could commence. Before the jury arrived, the court asked defendant if he would comport himself in an appropriate manner, otherwise the court would be forced to confine defendant to the holding cell during the trial. At that point, the defendant stated I'm going to leave. Just go ahead and have it. I'm out of here. (R. 24.) In response to this remark, the court ordered that the defendant be placed in the holding cell. Based on the remarks of the defendant, his counsel renewed the motion for a competency evaluation. (R. 25.) The court denied this renewed motion. With the defendant removed from the courtroom, a new prospective jury was brought out and the trial commenced. During the trial, defendant testified on his own behalf during his case-in-chief. (R. 193-231.) Defendant, who was the only witness called by the defense, was found to be guilty as charged. The court sentenced defendant to the maximum available term of 12 -5- months, to be served consecutively to the sentence defendant was presently serving in another criminal case. This appeal presents two assignments of error. I THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENSE MOTION TO EVALUATE THE COMPETENCY OF THE APPELLANT PURSUANT TO R.C. 2945.37 WHEN THE REQUEST WAS MADE PRIOR TO TRIAL. R.C. 2945.371(A), effective July 1, 1997 (six days prior to the request for a competency evaluation), provides in pertinent part: (A) If the issue of a defendant's competence to stand trial is raised ***, the court may order one or more evaluations of the defendant's present mental condition ***. (Italicization added.) The use of the word may in division (A) implies that the decision of whether to order a competency evaluation is left to the discretion of the court, and such an evaluation need not be ordered every time the issue is raised. State v. Bailey (1992), 90 Ohio App.3d 58, 67. In the case at bar, the record does not demonstrate an indicia of incompetency by the defendant, at any time, sufficient to merit a mental competency evaluation. Defendant's conduct and statements, while impertinent and emotionally charged, do not amount to tell-tale signs of a deranged mind at work. For whatever reason, to-wit, dissatisfaction with his assigned counsel, defendant's belief that the prosecution of the offense was racially motivated, or that the offense had no merit, defendant did not wish to have his trial proceed and engaged in a pattern of -6- purposeful conduct designed to impede the administration of justice, which is not unknown to this court or, undoubtedly, the trial court. We do not conclude that the trial court abused its discretion in denying the requests for a competency evaluation. The first assignment of error is overruled. II THE TRIAL COURT ERRED WHEN IT FAILED TO FULLY ADVISE THE APPELLANT OF HIS RIGHTS AND PRIVILEGES REGARDING TESTIFYING ON HIS OWN BEHALF. The argument offered by appellant is based on the application of Crim.R. 11, which involves the rights of a defendant in the taking of a plea bargain by a trial court, when the trial court questioned defendant as to whether he intended to testify. This argument is irrelevant to the case at bar because a change of plea was not done. Instead, the matter went to trial. Crim.R. 11 has no application in this case. The second 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 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. JAMES M. PORTER, P.J., and KENNETH A. ROCCO, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .