State v. Monford

Appellant. Ohio, Appellee, Monford, The State Monford, [Cite as State v. 2011-Ohio-6398.] (No. 2011.) 2010-1949 Submitted October 2011 Decided December dismissed, The cause is sua as sponte, having been improvidently accepted.

O’Connor, C.J., JJ., concur. Pfeifer, O’Donnell, Cupp, Lundberg Brown, JJ., and McGee dissent. Stratton, Lanzinger, J., dissenting. Lanzinger, I respectfully dissent from the court’s decision to dismiss appeal this

having been improvidently accepted. Although conflict was not certified in this case, it is clear parties’ from the briefs that two distinct perspectives exist on the issue of whether the failure of a trial court to address a plea of not guilty by (“NGRI”) reason of insanity entered and not withdrawn a defendant consti- tutes structural error. Appellant, Monford, LaRue advances opinion of Third District Appeals Cihonski, Court of State v. 178 Ohio App.3d 2008- Ohio-5191, in which held that a trial court’s failure notify the jury of the defendant’s NGRI plea constituted structural error and warranted reversal. Appellee, Ohio, the state of asserts that the Tenth District correctly decided that Cihonski is inapplicable to this case and that no structural error occurred. While I agree with the Tenth District that failure to withdraw an NGRI error, is not a structural the opposing viewpoints in this case highlight guidance

need for from this court on this issue of law. Appellant’s brief contains examples of other defendants who have similarly failed to withdraw this type it likely that this situation will arise the future. In the interest of judicial economy, would address the issue now that it has fully presented us, and I would affirm judgment of the court of appeals and hold that while a plea of NGRI should be withdrawn if it is not intended to be relied by defense, the mere failure to state the withdrawal of the on the record is not a structural error that automatically leads to a reversal of the conviction. Background

I. Case of R.C. in violation of murder charges in 2009 was indicted 2903.02, felonious and R.C. 2923.02 in violation of 2903.02, murder attempted in violation weapon a concealed 2903.11, carrying and of R.C. violation assault in the that resulted incident shooting a 2008 2923.12, stemming from all R.C. of not initially pled Monford to Alisa Brown. injuries Brown and Eugene of death additionally enter him to judge permitted trial later charges, to the but guilty Monford and evaluate to interview a doctor appointed court The an NGRI Before into the record. was ever entered report but no plea, his NGRI based on when Shwartz, Monford represented who had attorney Myron began, trial trial, result, Monford during a entered, unavailable. As became plea NGRI Younkin, appointed previously A. Tracy solely by attorney was represented co-counsel. Monford’s mentioned was not plea that the NGRI agree and the state Both Monford

{¶ 5} any instructions jury not give the court did during at all that plea. regarding court and the trial charge, on each guilty Monford jury The found to life. The Tenth years of 28 a total sentence prison Monford to

sentenced 2010-Ohio-4732, 35, 940 N.E.2d App.3d 190 Ohio affirmed the conviction. District of propositions first and second over Monford’s accepted jurisdiction 634. We 2011-Ohio-376, Monford’s first 1531, 940 N.E.2d 985. 127 Ohio St.3d law. has insanity reason of asserts, guilty by a of not plea “When of law proposition at trial constitutes to address such entered, failure duly complete been asserts, of not “When of law proposition His second structural error.” counsel, appears duly by prior entered insanity of has been by reason guilty ineffective withdrawn, new counsel renders file, and has plea.” to address such totally neglecting of counsel assistance Analysis II. by reason guilty to withdraw A. The mere of failure structural does not constitute insanity the trial court his counsel and that the failure of argues “A structural error. trial constituted structural address his NGRI rather proceeds, the trial within which the framework affecting error is a ‘defect (1991), v. Fulminante itself.’ Arizona process an error in the simply than Drummond, 111 1246, L.Ed.2d 302.” State 279, 310, 111 113 S.Ct. 499 U.S. 1038, “per errors 2006-Ohio-5084, 50. Structural 14, 854 N.E.2d Ohio St.3d that the trial to end’ so beginning trial from conduct of the entire ‘[t]he meate ‘ guilt for determination function as vehicle “reliably serve its cannot ’ 1246, L.Ed.2d 310, 111 113 Fulminante, S.Ct. 499 U.S. at 309 innocence.” 42

302, quoting (1986), 570, Rose v. 577-578, Clark 478 3101, U.S. 106 S.Ct. 92 Perry, 118, 2004-Ohio-297, L.Ed.2d 460.” State v. “ ¶ 17. We have recognized structural error can only be found in a ‘very ” ¶ 18, limited class of cases.’ Id. at quoting Johnson v. United States 461, 468, 117 1544, 137 U.S. S.Ct. L.Ed.2d Monford asks us to adopt the Third analysis District’s on a similar case Cihonski,

as the correct approach. See State v. 178 Ohio App.3d 2008-Ohio- Cihonski, In N.E.2d 212. entered, the defendant and the trial court accepted, a plea NGRI. The defendant at trial testified that he had left a psychiatric hospital several days prior to the incident for which he had been that, during arrested and hospital stay, his he was treated for anxiety panic attacks. Id. at 7. Neither the state nor defendant’s counsel mentioned the defendant’s however. counsel, Like Monford’s trial the attorney had begun representing the defendant entry after of the plea. Id. at 30. The trial court did not instruct jury the on insanity or inform jury the that the ¶ defendant had entered the NGRI Id. at 8. On appeal, the Third District concluded that

{¶ 9} the trial court’s failure to instruct jury the on the defendant’s defense of insanity violated his constitutional right to trial by jury and that the complete lack of mention of the defendant’s ¶ NGRI plea permeated the entire trial. at Id. 22-23. The court of appeals conviction, reversed the holding that the trial court’s actions constituted structur- ¶ al error. Id. at 23. The court also held that the defendant’s counsel was ineffective due to counsel’s failure to make the jury aware of the defendant’s plea. Id. at 30. Monford argues that corresponds Cihonski to the facts here. He case,

asserts that in each the issue of sanity was neither raised during nor reflected in the jury instructions and that trial appeared counsel unaware of the plea NGRI entered by another counsel on the defendant’s behalf. The state counters that the Tenth District properly distinguished the two cases because Cihonski had admitted the conduct with which he charged was but had also testified that his actions were involuntary and that he had received previous psychiatric treatment, thus raising the issue of his mental state when the event occurred. The Tenth District concluded that the Third District in Cihonski had determined that the defendant advanced a defense of legal insanity but that Monford, contrast, in had present failed to any evidence of insanity and never indicated he to present wished an insanity defense. 190 App.3d Ohio 2010-Ohio-4732, 73-74. The Tenth District also noted that throughout trial, the entire Monford relied upon misidentification defense—that he was not the shooter and that witnesses who him identified as the shooter were mistaken. Id. at 74. Because Monford’s defense was wholly inconsistent with a no District held that the Tenth by insanity, of not reason guilty defense ¶at had Id. structural error occurred. certain, the District. To conclusion of the Tenth be agree with the entered but evidence is in in which an NGRI is cases practice

best the to determine whether the trial is for the trial court during issue presented the on the and enter withdrawal formally wishes withdraw the defendant an is not However, in which NGRI in cases such Monford’s record. the the failure to state any by in the defendant way pursued is error. on the record not a structural withdrawal he arguably presented evidence While defendant Cihonski had psychiatric his when he that he received plea of NGRI testified pursuing any reliance shortly question, the events Monford abandoned treatment before report present not submit a medical otherwise theory on a NGRI. He did correctly As the Tenth District concerning his mental state. any evidence observed, that the misidenti upon theory his defense witnesses Monford based and the of the defense presented theory him as the shooter. The evidence fied an affirma Insanity to a defense. potential were therefore antithetical that the defendant would requires showing which definition by tive if act. See even committed criminal charged liable for crime he had be quoting 62 O.O.2d N.E.2d State v. Poole (affirmative (12th Ed.), Anderson, 1 Section 19 Wharton’s Criminal Evidence which the not a mere denial or contradiction evidence “represent defenses charged, of an element of crime proof has offered as essential prosecution rather, but, they independent a substantive or matter ‘which represent him facts claims from if it is conceded that the liability even exempts defendant ”). Here, true’ Monford offered no NGRI prosecution claimed are evidence, testimony of the choosing prosecution’s instead to contradict the him as the witnesses who identified shooter. fall does not The failure to address withdrawal of Monford’s 13}

{¶ clearly that structural error. Monford qualify into the limited class of cases to a defense pursue the and the tactical decision insanity abandoned trial not an that the entire permeated misidentification was based trial a fair being to in a manner that the from beginning prevented from end reasons, to innocence. For these by which Monford’s or process guilt determine on the hold that mere failure to state the withdrawal of the would the to the automatically a that leads a reversal of record is not structural error conviction. insanity guilty by

B. The address a not reason to failure of of constitute assistance counsel necessarily does ineffective of assis- provided that Younkin ineffective argues attorney Monford also claim of prevail To on a by counsel to address the NGRI failing tance of 44 (1) counsel, assistance of a defendant show performance

ineffective must deficient counsel, i.e., an performance falling objective below standard of reasonable (2) i.e., a but for representation, prejudice, probability reasonable that errors, proceeding’s counsel’s result would have different. v. Strickland 668, (1984), 687-688, 694, 2052, 674; Washington 466 104 S.Ct. L.Ed.2d U.S. 80 (1989), Bradley State v. Ohio St.3d 538 N.E.2d paragraph two In an show syllabus. attempt performance, to deficient that argues of Younkin failed to become familiar with the the case history upon appointment if and that Younkin was aware of forgot ever the NGRI he either or to mention it the trial. neglected “Judicial scrutiny performance highly of counsel’s must be deferential.” 15}

{¶ at of evaluation, Strickland 689. “Because in making difficulties inherent must indulge presumption that strong counsel’s conduct falls within the range assistance; is, professional wide reasonable that the defendant must that, circumstances, overcome the presumption under the the challenged action ” be ‘might Id., considered sound strategy.’ quoting Michel v. Louisiana 91, 101, 350 U.S. 76 S.Ct. 100 L.Ed. 83. I would hold that Younkin’s representation Monford was not deficient 16} {¶ may under circumstances of this case. itWhile have been more to prudent officially withdraw Monford’s NGRI before the failure to withdraw not rise to plea did the level ineffectiveness. Younkin made a tactical decision identity, defend mistaken at theory is odds with the affirmative of insanity. highly defense Given the deferential standard established in Strick- land, Monford’s argument does overcome the presumption that Younkin’s tactical decision represented sound trial strategy. Furthermore, Monford’s Younkin argument either forgot ne to mention

glected plea during trial is speculation. mere “Such speculation Perez, insufficient establish ineffective assistance.” State v. 124 Ohio St.3d 122, 2009-Ohio-6179, 104, 217, Were, 920 N.E.2d State v. citing 118 Ohio St.3d 448, 2008-Ohio-2762, Elmore, N.E.2d and State 515, 2006-Ohio-6207,

III. Conclusion This court is to set forth a able clear and definitive on whether ruling the failure withdraw an NGRI plea constitutes structural error there when to be appears some confusion regarding pursue whether defendant wishes to I respectfully defense. dissent from majority’s decision to dismiss this appeal having improvidently accepted. While of NGRI should be if it withdrawn will not be relied by the the mere failure not a the record of the withdrawal the formal to state trial court conviction. a reversal leads to automatically structural appeals. the court judgment affirm the I would opinion. JJ., foregoing in the concur and McGee Lundberg Brown, Stratton Gilbert, L. Attorney, and Seth Prosecuting County O’Brien, Franklin Ronald J. appellee. for Prosecuting Attorney, Assistant Adair, Defender, Allen V. and Venters, County Public Franklin R.

Yeura Defender, appellant. for Assistant Public Appellee, Company, & Roebuck ex rel. Sears

The State Appellants. al., et of Ohio Industrial Commission v. Indus. & Co. rel. Roebuck ex Sears [Cite as State Comm., 2011-Ohio-6525.] St.3d 131 Ohio 2011.) December 2011 Decided (No. September 2010-0955 Submitted Per Curiam. Industrial Commission appellant whether asked to determine We are & Roebuck Sears appellee, self-insured by ordering its discretion abused

Ohio for a Timothy Mathews by appellant a medical bill submitted pay Company, review, that it did. we find Upon doctor’s visit. accident on October in an industrial injured Mathews left in the torn muscles by Sears for was allowed claim compensation workers’ five the next injuries. For bladder, internal tears of the buttocks leg, however, treatment By treatment. medical had extensive Mathews years,

Case Details

Case Name: State v. Monford

Court Name: Ohio Supreme Court

Date Published: Dec 15, 2011

Citation: 960 N.E.2d 440

Docket Number: 2010-1949

Court Abbreviation: Ohio