In re S.M.
Samantha J. Fields, Ironton, Ohio, for Appellant.
J.B. Cоllier, Jr., and Kevin J. Waldo, Ironton, Ohio, for Appellee.
Per Curiam
{¶1} S.M. appeals the trial court‘s judgment adjudicating him a delinquent child for committing the offense of felonious assault and committing him to the Department of Youth Services (DYS). S.M. argues that he did not receive effective assistance of counsel because his attorney (1) failed to request a second competency hearing and (2) failed to present sufficient evidence in support of a DYS alternative. Because S.M. entered an admission to the delinquency complaint, he implicitly admitted his competency and sanity and may not now challenge counsel‘s actions related to those issues. And S.M. cannot demonstrate that even if counsel presented further evidence in support of a DYS alternative, the court would have committed him to this alternative facility. Thus, he is unable to show that he received ineffective assistance of counsel.
{¶2} S.M. also asserts that the trial court erred by failing to transfer the dispositional heаring to Butler County. Because S.M. failed to produce affirmative evidence that other proceedings involving him were pending in Butler County, the trial
I. FACTS
{¶3} In September of 2008, S.M. stabbed his foster mother in the chest and thigh. He subsequently was alleged to be a delinquent child for having committed the offense of felonious assault, a second-degree felony if committed by an adult. S.M. entered a plea of not guilty by reason of insanity and asked for a competency evaluation.
{¶4} Accordingly, the court ordered S.M. to undergo a mental health evaluation. Dr. Robert Kurzhals evaluated S.M. and concluded that S.M. was competent to stand trial and that he understood the wrongfulness of his actions. Dr. Kurzhals explained: “[S.M.] does not suffer from a sevеre mental defect, as he appears to have at least low average if not higher intellectual abilities. It is my opinion [S.M.] does suffer from a severe mental disease, as he has a history of Bipolar Disorder. However, he did not appear to be experiencing the active symptoms of this illness during the course of the evaluation, and he had reportedly been compliant with his psychotropic medication. As such, it is my opinion to a reasonable degree of psychological certainty although [S.M.] does suffer from a severe mental disease, he is currently capable of understanding the nature and objective of the proceedings pending against him and of assisting counsel in preparing a defense for himself, should he choose to do so. I therefore recommend he be found competent to stand trial.”
{¶6} The trial court subsequently found S.M. competent to proceed to adjudication. The parties stipulated to the admissibility of the mental health evaluations, and S.M. admitted the allegations of the complaint. The trial court adjudicated S.M. a delinquent child for committing the offense of felonious assault. S.M. thеn requested the court to transfer the dispositional hearing to Butler County. The trial court denied this request.
{¶7} At the dispositional hearing, S.M. asked the court to commit him to the Ohio Hospital for Psychiatry, located in Columbus. S.M.‘s Butler County caseworker testified that S.M. would benefit from this type of commitment in a locked, therapeutic facility. The cоurt subsequently committed S.M. to DYS and ordered that he receive psychological counseling and therapy while committed.
II. ASSIGNMENTS OF ERROR
{¶8} S.M. raises two assignments of error:
First Assignment of Error:
S.M. was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
Second Assignment of Error:
The trial court erred to the detriment of аppellant in failing to transfer this matter [to] Butler County contrary to
R.C. 2151.271 andJuv.R. 11 clear and mandatory requirements [sic].
III. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶9} In his first assignment of error, S.M. asserts that he did not receive effective assistance of counsel. He essentially contends that trial counsel was ineffective for failing (1) to request a second competency evaluation and (2) to present sufficient testimony to support a DYS alternative. He also appears to argue that counsel rendered ineffective assistance of counsel by stipulating to the admission of the competency evaluation and by admitting the delinquency allegation.
A. AN ADMISSION CONSTITUTES A WAIVER OF CERTAIN ERRORS THAT OCCURRED DURING ADJUDICATORY PHASE
{¶10} An admission in a delinquency proceeding is similar to a
{¶11} Here, by entering an admission to the delinquency complaint, S.M. waived all alleged errors that occurred before he entered the admission, except to the extent the alleged errors caused his admission to be less than knowing, intelligent, and voluntary. S.M. does not raise any argument that counsel‘s alleged ineffectiveness caused his delinquency admission to be less than knowing, intelligent, and voluntary. Rather, he summarily asserts that counsel wrongly stipulated to the admission of the mental health evaluation and wrongly admitted the delinquency allegation. S.M. has no substantive argument to support these conclusory allegations. Therefore, we summarily reject them. See
{¶12} S.M. also waived any argument that counsel‘s failure to request a second competency evaluation amounted to ineffective assistance of counsel. S.M.‘s precise argument regarding this issue is vague—asserting that the outcome of the proceedings would have been different—but we interpret it to mean that had counsel pursued a second competency evaluation, the results of that evaluation would have persuaded the court that he is not competent to stand trial or not guilty by reason of insanity. Like a
{¶13} More importantly, several courts have concluded that counsel‘s failure to seek a second competency evaluation does not amount to ineffective assistance of counsel. See State v. Hill, Lucas App. No. L-05-1080, 2006-Ohio-859 (concluding counsel was not ineffective for failing to request second competency evaluation), reversed on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 110 Ohio St.3d 156, 2006-Ohio-4086, 852 N.E.2d 156; State v. Womack, Lucas App. No. L-04-1092, 2005-Ohio-2689 (stating that when the record fails to show that a secоnd examination would reveal a different conclusion, a defendant is hard-pressed to establish ineffective assistance of counsel for failing to request a second exam); see, also, In re Anderson, Tuscarawas App. No. 2001AP030021, 2002-Ohio-776; In re Gooch, Montgomery App. No. 19339, 2002-Ohio-6859, at ¶29-31; State v. Grubbs (1998), 129 Ohio App.3d 730, 719 N.E.2d 28.
{¶14} S.M.‘s remaining argument—that counsel failed to present additional
B. S.M. HAS NOT SHOWN THAT COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL
{¶15} The Sixth Amendment to the United States Constitution and Section 10, Article I, of the Ohio Constitution provide that defendants in all criminal proceedings shall have the assistance of counsel for their defense. The United States Supreme Court has generally interpreted this provision to mean a criminal defendant is entitled to the “reasonably effective assistance” of counsel. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. An accused juvenile has a constitutional right to counsel, and the same rights to effective assistance of counsel as an adult criminal defendant. In re Lower, Highland App. No. 06CA31, 2007-Ohio-1735, at ¶37, citing In re Gault (1967), 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527. Thus, we apply the same Sixth Amendment effective assistance of counsel principles that apply in criminal proceedings. See In re B.C.S., Washington App. No. 07CA60, 2008-Ohio-5771.
{¶16} To prevail on a claim of ineffective assistance of counsel, S.M. must show (1) his cоunsel‘s performance was deficient in that it fell below an objective standard of reasonable representation, and (2) the deficient performance prejudiced his defense so as to deprive him of a fair trial. See, e.g., State v. Smith, 89 Ohio St.3d 323, 327, 2000-Ohio-166, 731 N.E.2d 645, citing Strickland at 687; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. To establish prejudice, S.M.
{¶17} Even if we assumed that counsel‘s failure to submit additional evidence in support of a dispositional alternative constituted deficient performance, S.M.‘s assertion that the trial court would have ordered him committed to the Ohio Hospital for Psychiatry is pure speculation. The record shows that S.M.‘s delinquency adjudication resulted from a violent, second-degree felony if committed by an adult. He stabbed his victim with a knife. The trial court obviously determined that his actions justified a commitment to DYS. While further evidence regarding the dispositional alternative may have been helpful, no reasonable probability exists that the trial court‘s commitment decision would have been different.
{¶18} Accordingly, we overrule S.M.‘s first assignment of error.
IV. TRANSFER OF DISPOSITIONAL HEARING
{¶19} In his second assignment of error, S.M. argues that the trial сourt erred by failing to transfer the dispositional hearing to Butler County. He contends that a case was pending in Butler County and, thus, the court was required, under
{¶20}
Except in a case in which the child is alleged to be a serious youthful offender under
section 2152.13 of the Revised Code , if the child resides in a county of the state and the proceeding is commenced in a juvenile cоurt of another county, that court, on its own motion or a motion of a party, may transfer the proceeding to the county of the child‘s residence upon the filing of the complaint or after the adjudicatory, ordisposition hearing, for such further proceeding as required. The court of the child‘s residence shall then proсeed as if the original complaint had been filed in that court. Transfer may also be made if the residence of the child changes. The proceeding shall be so transferred if other proceedings involving the child are pending in the juvenile court of the county of the child‘s residence.
(Emphasis added.)
{¶21}
(A) Residence in another county; transfer optional
If the child resides in a county of this state and thе proceeding is commenced in a court of another county, that court, on its own motion or a motion of a party, may transfer the proceeding to the county of the child‘s residence upon the filing of the complaint or after the adjudicatory or dispositional hearing for such further proceeding as required. The court of the child‘s residence shall then proceed as if the original complaint had been filed in that court. Transfer may also be made if the residence of the child changes.
(B) Proceedings in another county; transfer required
The proceedings, other than a removal action, shall be so transferred if other proceedings involving the child are pending in the juvenile court of the county of the child‘s residence.
{¶22}
{¶24} Here, the trial court did not err as a matter of law by failing to transfer the dispositional hearing to Butler County pursuant to
{¶25} Nor did the trial court abuse its discretion by refusing to transfer the case under
{¶26} Accordingly, we overrule S.M.‘s second assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered thаt the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court, Probate-Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only as to Assignment of Error I;
Dissents as to Assignment of Error II.
For the Court
BY: ________________________________
William H. Harsha, Judge
BY: ________________________________
Peter B. Abele, Judge
BY: ________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.