State v. MarksState v. Marks
JUDGMENT: AFFIRMED
RELEASED: December 3, 2009
JOURNALIZED:
ATTORNEY FOR APPELLANT
Thomas A. Rein
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant Prosecuting Attorney
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Eugene Marks (“defendant“), appeals from his convictions and sentence relating to offenses that occurred on three different occasions. For the reasons that follow, we affirm.
{¶ 2} In Case No. CR-512654, defendant was charged with one count of drug possession that occurred on May 11, 2008. In Case No. CR-512473, defendant was charged with one count of drug possession that occurred on May 18, 2008. In Case No. CR-511683, defendant was charged with two counts of drug trafficking and one count of drug possession that occurred on May 28, 2008.
{¶ 3} At a hearing held on August 7, 2008, the court found defendant incompetent to stand trial and he was referred to the Northcoast Behavioral Center for treatment. The court later found defendant competent to stand trial at a hearing held on October 17, 2008.
{¶ 4} On October 31, 2008, defendant entered no contest pleas in all three cases. During the plea colloquy, defendant raised the issue of merger as to the drug trafficking charges, which the State conceded and reduced his potential maximum prison sentence to four years. The State proffered its version of what the evidence would show at trial and the court found defendant guilty on all counts. The matter was referred to probation for a presentence investigation report.
{¶ 5} On November 3, 2008, defendant filed a pro se motion to disqualify counsel, which was unopposed by his assigned counsel and granted by the trial
{¶ 6} The trial court imposed sentence as follows: an 11-month prison sentence in Case No. CR-511683, to be served consecutively to a ten-month prison sentence in Case No. CR-512473, both sentences to be served concurrently with a four-year term of community control sanctions in Case No. CR-512654. Defendant was assigned appellate counsel and presents three assignments of error for our review.
{¶ 7} “I. The trial court erred in not allowing appellant to withdraw his guilty plea prior to sentencing.”
{¶ 8} A motion to withdraw a guilty plea is governed by the standards set forth in
{¶ 9} “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶ 11} “It is not an abuse of discretion to deny a presentence motion to withdraw a guilty plea when a defendant: (1) is represented by competent counsel; (2) is given a full
{¶ 12} Defendant bases this assignment of error on his belief that the trial court did not properly advise him of constitutional rights as required by
{¶ 13} The record contains the following advisement by the trial court:
{¶ 14} “Do you understand that you‘re giving up your right to remain silent and not testify at trial?” To which defendant responded, “Yes, your Honor.”
{¶ 15} The case law relied upon by defendant concerns informing a defendant of the right to compulsory process where it was held that merely stating a “right to bring in witnesses * * * to testify” in one‘s defense is not the equivalent to the defendant‘s right to compel the witnesses attendance. State v. Rosenburg, Cuyahoga App. No. 84457, 2005-Ohio-101. It is conceivable that the defendant in Rosenburg may have understood from the court‘s advisement that he could “bring in witnesses” but may not have understood that he could force witnesses to appear at his trial. In this case, the trial court‘s advisement could not have lead to any confusion over defendant‘s right not to testify at his trial. Obviously, if defendant has a “right to remain silent and [a right] not [to] testify at trial” he “cannot be compelled to testify against himself.” There is no requirement in the law that the trial court use specific language when informing a defendant of a constitutional right for purposes of
{¶ 16} Defendant offers no other basis for withdrawing his guilty plea, therefore, the trial court did not abuse its discretion when it denied his motion.
{¶ 18} “II. The trial court erred by ordering appellant to serve a split sentence when it imposed both prison and community control sanctions.”
{¶ 19} Defendant contends that the trial court erred by imposing prison sentences for his convictions in two of his cases while imposing community control sanctions for his conviction in the third case. We have previously addressed and rejected this argument in State v. Aitkens, Cuyahoga App. Nos. 79851 and 79929, 2002-Ohio-1080. In Aitkens, this Court held that ”
{¶ 20} Assignment of Error II is overruled.
{¶ 21} “III. The trial court abused its discretion, after being advised by trial counsel that appellant‘s competency was at issue, when it did not allow appellant to have further psychiatric testing.”
{¶ 22} Defendant bears the burden of establishing incompetence and the trial court‘s decision will not be reversed absent an abuse of discretion. State v. Hunter, Cuyahoga App. No. 89456, 2008-Ohio-794, ¶16.
{¶ 24} “(B) 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.” (Emphasis added.)
{¶ 25} The trial court could only hold a hearing on defendant‘s post-conviction request for re-evaluation “for good cause.” State v. Berry (1995), 72 Ohio St.3d 354, 440 (competency issued raised between guilt phase and mitigation phase of capital murder trial was not raised “before trial has commenced” and thus required a showing of good cause).
{¶ 26} Defendant makes a generalized argument that the trial court erred by not considering his post-conviction request for a re-evaluation. However, defendant did not establish good cause. Defense counsel merely stated his opinion that defendant was suffering from “severe mental issues” and said he was requesting further psychiatric testing because there “appeared to be continued issues with his competency.” This is insufficient to establish good cause that defendant was incompetent at the time of his sentencing. Further
{¶ 27} Assignment of Error III is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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 Court of Common Pleas 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
JAMES J. SWEENEY, JUDGE
PATRICIA A. BLACKMON, J., CONCUR