{¶ 2} Appellant is the father of a minor child born on July 30, 1994. On February 14, 1996, appellant was ordered by the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, to pay child support of $149.70 per month, plus poundage, and an additional $43.33 per month, plus poundage, to liquidate the child support arrearage. On March 14, 2002, appellant was indicted on two counts of non-support of dependents relating to the February 14, 1996 order. The indictments alleged that appellant had failed to pay child support from February 11, 1998 through February 12, 2002.
{¶ 3} Although appellant was, at first, represented by appointed counsel, he opted to proceed pro se. On January 30, 2003, a hearing was held, at which time the trial court assigned another attorney, Scott Weisman, to assist appellant in representing himself. A second hearing was held, at which time Weisman requested a competency review of appellant before allowing him to proceed pro se. No competency hearing was held. On July 21, 2003, a bench trial commenced with appellant acting pro se. On July 23, 2003, the court found appellant guilty on both counts of non-support of dependents. On September 12, 2003, the court sentenced appellant to five years of community control. Appellant appeals the judgment of the trial court, asserting the following two assignments of error:
ASSIGNMENT OF ERROR NO. 1:
The appellant was denied his right to due process when the trial court did not order a competency hearing prior to trial under the
ASSIGNMENT OF ERROR NO. 2:
The appellant was denied his right to due process when the trial court did not require the state to show appellant received notice of the underlying domestic relations order in violation of the
{¶ 4} Appellant argues in his first assignment of error that the trial court denied him due process when it did not order a competency hearing prior to trial. Consistent with the notion of fundamental fairness and due process, a criminal defendant who is not competent may not be tried and convicted. Pate v. Robinson
(1966),
{¶ 5} R.C.
In a criminal action in a court of common pleas, a county court, or a municipal court, the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court's own motion.
{¶ 6} On October 21, 2002, the date originally set for trial, appellant was present with appointed counsel. Appellant requested that the appointed attorney be dismissed and that he be permitted to proceed pro se. At no time did appellant's appointed counsel raise any issue of competency before she was dismissed. Later during that same hearing, the prosecutor stated:
[Prosecutor:] * * * [A]nother thing that I'm really not sure about, but [the appointed attorney] had indicated to me earlier was she indicated to me she had two concerns in this case. She was not sure if there was possibly a competency problem or if [appellant] truly did want to represent himself and was not interested in having her services. Now that I've spoke to him I also have —
* * *
[Prosecutor:] Your Honor, after speaking to him, I also share some of the competency concerns that [the appointed attorney] had expressed to me. * * *
After the trial court appointed advisory counsel for appellant, his advisory counsel stated to the court:
[Advisory counsel:] * * * I feel compelled to ask this Court to order competency at this time. More so for this Court to see if he was even capable mentally to represent himself based on his perceptions of the proceedings and what's been happening. For that reason, Your Honor, I would ask the Court to order competency and to review before [appellant] is permitted to proceed on his own to represent himself.
Although it is questionable whether advisory counsel had standing to raise the issue of competency, as he was not one of the enumerated entities permitted by R.C.
{¶ 7} R.C.
{¶ 8} In the present case, we find that the record does not contain sufficient indicia of incompetence to suggest that appellant was unable to understand the nature of the proceedings against him or assist in his defense. The record contains evidence from the pre-trial hearings, as well as the trial, affirmatively demonstrating that appellant was competent to stand trial. During the pre-trial hearings, appellant answered the court's questions appropriately. See State v. McGrath, Meigs App. No. 02CA7,
{¶ 9} As for appellant's actions at trial, appellant questioned witnesses reasonably and without incident, although he did stray into irrelevant matters at times, as pro se litigants commonly do. See State v. Bomar (Oct. 23, 2000), Scioto App. No. 00 CA 2703 (artful direct examination indicative of competence). Further, appellant engaged in reasoned discussions with the trial court and expressed no confusion or uncertainty during trial. See State v. Thompson (May 3, 2001), Franklin App. No. 00AP-608 (engaging in reasoned discussions with no apparent confusion or uncertainty is indicative of competency). There was also no evidence of irrational behavior, and appellant did not appear to be agitated or argumentative. See State v.Draughn (1992),
{¶ 10} In sum, the record of the pre-trial hearings and the trial reflects that appellant participated in and understood the nature of the proceedings. See Thompson, supra (participation in and comprehension of the nature of the proceedings is indicative of competency). We find that the record in this case does not contain sufficient evidence of incompetence to render the court's failure to hold a hearing anything more than harmless error. Therefore, we overrule appellant's first assignment of error.
{¶ 11} Appellant argues in his second assignment of error that the trial court denied him due process when it did not require the state to demonstrate appellant received notice of the underlying domestic relations order. Even assuming, arguendo, that R.C.
{¶ 12} Accordingly, appellant's two assignments of error are overruled, the state's motion to dismiss is moot, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Klatt and Watson, JJ., concur.