{¶ 2} On March 21, 2007, appellant was indicted in two separate cases, which are consolidated in this appeal. In Case No. CR-490222, appellant was charged with one count of drug abuse, in violation of R.C.
{¶ 3} On May 1, 2007, appellant appeared before the trial court to change his previously entered not guilty pleas. During the plea hearing, the court and appellant had the following exchange:
{¶ 4} "Court: Are you under the influence of alcohol, medication, or drugs today, Mr. Lewis?
{¶ 5} "Appellant: I'm on psych medication.
{¶ 6} "Court: Is it any kind of medication that causes you to have any difficulty understanding what you are doing here today?
{¶ 7} "Appellant: No, sir."
{¶ 8} The court then continued with its plea colloquy and proceeded to accept appellant's guilty pleas to the single count of drug abuse in Case No. CR-490222 *4 and to having a weapon while under a disability in Case No. CR-493779.1 Counsel for appellant then informed the court that a psychiatric evaluation had been prepared for the Cleveland Municipal Court two months prior on a case pending there against appellant. The court acknowledged that if counsel obtained a copy of the report, it could be made a part of the presentence report. Court was then adjourned.
{¶ 9} On June 5, appellant appeared before the court for sentencing. During the sentencing hearing, counsel for appellant advised the court that appellant had been diagnosed as having a psychotic disorder. He requested that the court place appellant on probation, allow him to continue with treatment with anti-psychotic medication, and allow him to participate in the Mentally Disordered Offender ("MDO") Program in Cleveland.2
{¶ 10} The court sentenced appellant to one year in prison for the drug abuse conviction and two years in prison for the having a weapon while under a disability conviction, to be served concurrently. Appellant timely appeals the court's acceptance of his guilty plea.
{¶ 12} In his first assignment of error, appellant argues that the court was obligated to inquire further about his mental competency to plead guilty. He argues that once he alerted the court to the fact that he was taking anti-psychotic medication, the court was required to determine if he was capable of understanding the proceedings before him.
{¶ 13} We note at the outset that appellant makes this argument for the first time on appeal. Our review of the record and transcript below does not show that appellant moved to withdraw his guilty plea in compliance with Crim. R. 32.1. See State v. Carmon (Nov. 18, 1999), Cuyahoga App. No. 75377. "A failure to assert an alleged error in the trial court waives that error on appeal. * * * Therefore, [a defendant's] failure to raise this argument in the court below ordinarily precludes us from reviewing this issue on appeal. * * *." (Internal citations omitted.) Id. Therefore, absent a showing of plain error, appellant has waived this argument.
{¶ 14} We find that the court did not err in accepting appellant's guilty plea because the court complied with the requirements of Crim. R. 11(C).
{¶ 15} Crim. R. 11(C)(2) requires, "In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the *6 following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing; (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence; (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself."
{¶ 16} The first time the trial court was made aware of appellant's use of prescribed anti-psychotic medication was at the plea hearing when appellant was being addressed by the court. A similar situation occurred in State v. Ketterer,
{¶ 17} "Here, the trial court fully complied with the requirements to accept a guilty plea. See State v. Turner,
{¶ 18} This court has addressed this same issue in State v.Roberson (Jan. 19, 1995), Cuyahoga App. No. 66523. In that case, where "[t]he defendant told the trial court that the medication he was taking did not `impair his ability to reason and make an informed decision, * * * the trial court was not required to make any further inquiry.' *8 There is no evidence of record that defendant was impaired in any way at the time that he entered his guilty plea. Nor does defendant even contend that his judgment was impaired by medication — he only claims the court should have pursued the matter further. This is not grounds for reversal." Roberson at page 3.
{¶ 19} Appellant indicated to the court that he was on medication, but that it did not impair his ability to understand the proceedings. At no time did appellant or his counsel indicate that appellant's plea was not knowingly, intelligently, or voluntarily made. Appellant also does not make that argument on appeal, only that the court should have made a further inquiry into his mental state. As the cases in this district hold, the trial court has not committed reversible error where it has engaged, as it did here, in the proper Crim. R. 11(C) colloquy with appellant.
{¶ 20} Finding no merit in appellant's argument, we overrule his first assignment of error.
{¶ 22} In his second assignment of error, appellant argues that he was denied his right to effective assistance of counsel because his attorney did not request a competency evaluation before allowing him to enter a guilty plea. He argues that the psychiatric report prepared in the municipal court case against him should have *9 been given to the court prior to his entering a guilty plea. We find no merit in this argument.
{¶ 23} In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation.Strickland v. Washington (1984),
{¶ 24} The Ohio Supreme Court held in State v. Bradley (1989),
{¶ 25} "Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. `An error by counsel, even if *10
professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf.United States v. Morrison,
{¶ 26} "Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different."
{¶ 27} Here, appellant does not argue that he was incompetent at the time he entered his guilty plea. As noted in our discussion of his first assignment of error, appellant merely argues that the trial court should have inquired further regarding his mental state. Neither appellant nor his counsel raised the issue of his competency at the time of the plea hearing. See Roberson, supra, (court denied claim of ineffective assistance of counsel based on attorney's failure to request competency hearing). It was only at the sentencing hearing that appellant's counsel first raised *11 with the court the nature of appellant's mental illness as it related to an appropriate sentence.
{¶ 28} A review of the plea hearing transcript does not support a finding by this court that the trial court erred in not ordering a competency hearing. In fact, the opposite is true. The transcript indicates that both appellant and his attorney agreed that appellant understood the nature of the proceedings, that he had discussed his waiver of certain constitutional rights, and that the court complied with Crim. R. 11.
{¶ 29} Appellant also argues that the court should have been made aware of the psychiatric report prepared two months before his plea hearing. There is nothing to indicate that the results of the plea hearing would have been different, since counsel for appellant was aware of the report and still chose not to raise the issue of competency.
{¶ 30} Appellant has failed to demonstrate that his counsel's representation fell below the standard set forth in Strickland. Therefore, we overrule appellant's second assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
KENNETH A. ROCCO, J., CONCURS;
COLLEEN CONWAY COONEY, P.J., CONCURS IN JUDGMENT ONLY.