STATE OF OHIO v. RICKY LEE PACK
CASE NOS. CA2022-12-087, CA2022-12-088, CA2022-12-089
IN THE COURT OF APPEALS, TWELFTH APPELLATE DISTRICT OF OHIO, CLERMONT COUNTY
9/11/2023
[Cite as State v. Pack, 2023-Ohio-3200.]
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant Prosecuting Attorney, for appellee.
Denise S. Barone, for appellant.
HENDRICKSON, J.
{¶ 1} Appellant, Ricky Lee Pack, appeals the judgment of the Clermont County Court of Common Pleas revoking his community control in three cases and sentencing him to an aggregate prison term of 54 months. For the reasons discussed below, we affirm.
{¶ 2} On August 1, 2019, appellant was indicted in the Clermont County Court of Common Pleas Case No. 2019 CR 00748 (“Case No. 748“) on one count of possession of
{¶ 3} On September 10, 2020, appellant‘s probation officer filed an affidavit of community control violation, alleging that appellant violated his probation in Case Nos. 748 and 1046 by (1) failing to report as directed, (2) failing to follow the probation department‘s verbal and written commands, (3) failing to participate in and successfully complete recommended substance abuse treatment and counseling at Brightview upon his release from the CCC, and (4) admitting he would test positive for methamphetamine on two occasions. Appellant entered an admission to the foregoing violations and, on December 28, 2020, the trial court continued appellant on community control in both cases. However,
{¶ 4} A month later, on January 28, 2021, appellant‘s probation officer filed another affidavit of community control violation, alleging that appellant violated his probation in Case Nos. 748 and 1046 by (1) committing a theft offense, (2) failing to report as directed, (3) failing to follow the probation department‘s verbal and written commands, and (4) failing to contact or engage in treatment at Brightview following his release from jail in December 2020. The allegation that appellant committed a theft offense was dismissed and appellant entered an admission to the remaining violations. On March 3, 2021, the trial court continued appellant on community control in both cases, but added as an additional term of his community control that appellant participate in and successfully complete all available programming at Turtle Creek Halfway House.
{¶ 5} On March 11, 2021, in Clermont County Court of Common Pleas Case No. 2021 CR 00187 (“Case No. 187“), appellant was indicted on one count of complicity to grand theft of a motor vehicle in violation of
{¶ 6} A little over a month later, on July 12, 2021, appellant‘s probation officer filed an affidavit of community control violation in Case Nos. 748, 1046, and 187. The affidavit
{¶ 7} More than a year later, appellant was arrested and brought before the common pleas court on the community control violations and for an arraignment in a fourth criminal case. Appellant entered an admission to the community control violations and the court held a sentencing hearing on December 6, 2022. At this hearing, appellant‘s counsel addressed the court, stating that appellant wanted him to raise the issue of competency or not guilty by reason of insanity (NGRI) “so that these cases are continued for another day while there is that evaluation process.” Counsel told the court that he had explained to appellant that he could not ethically file a motion that he knew had no merit. He indicated he had spoken with appellant “probably five times” about the most recent probation violations and sentencing and appellant had made repeated requests that counsel seek competency and NGRI evaluations. However, counsel indicated that nothing during his conversations with appellant indicated appellant had any competency issues that needed addressed by the court. Counsel stated, “[appellant] is an intelligent individual who understands his avenues, in my opinion, of strategy. I have no issues with [appellant‘s] intelligence or competency.” Counsel then stated that he would have filed for a competency or a NGRI evaluation if he “reasonably, even remotely felt that was an issue,” but he did not.
{¶ 8} The court, in turn, noted that the issue of appellant wanting a competency evaluation had initially arisen at an earlier pretrial hearing. In response to appellant personally raising the issue of competency, the trial court indicated the following:
THE COURT: I listened to the recording. I listened to my conversation with Mr. Pack, and certainly, my review of the interaction that we had, there‘s no indication whatsoever of any issues of competency.
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[Appellant‘s counsel] has been counsel for many years with the Public Defender. Certainly, he‘s filed competency, NGRI motions on behalf of clients before. He‘s had extensive contact and discussion with Mr. Pack. I certainly would believe based on the record here, and I can‘t recall the specifics, but I believe that it was mentioned last time and either on the record or in pretrial or in chambers, and that the court went back and listened to his admissions to these probation violations.
I didn‘t see anything in any record that would indicate to the Court at any point in time that he had an issue with competency that the Court needed to sua sponte address. His counsel‘s indicated he has no issues. It appears to be a delay tactic at this time. It appears to be simply a delay tactic on behalf of Mr. Pack.
The court found no reason to delay sentencing on the community control violations and proceeded to revoke appellant‘s community control in Case Nos. 748, 1046, and 187.
{¶ 9} In revoking appellant‘s community control, the trial court specifically referenced the principles and purposes of felony sentencing under
{¶ 10} Appellant appealed the revocation of his community control, raising two assignments of error for review.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF RICKY LEE PACK BY REFUSING TO ENTERTAIN HIS ORAL MOTION TO BE FOUND NOT GUILTY BY REASON OF INSANITY.
{¶ 13} Although the caption of appellant‘s first assignment of error alleges prejudice as a result of the trial court‘s refusal to consider his oral motion to be found not guilty by reason of insanity, the body of appellant‘s first assignment of error solely raises an ineffective assistance of counsel claim. Specifically, appellant argues his trial counsel was ineffective for failing to file a motion for a competency evaluation or a motion to enter a NGRI plea to the community control violations. We limit our analysis to a discussion of appellant‘s ineffective assistance of counsel claim.1
{¶ 14} “In order to prevail on an ineffective-assistance-of-counsel claim, a defendant
{¶ 15} “NGRI is an affirmative defense that a defendant must prove by a preponderance of the evidence.” State v. Magee, 12th Dist. Clermont No. CA2019-11-083, 2020-Ohio-4351, ¶ 14, citing State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, ¶ 70 (10th Dist.). “A person is ‘not guilty by reason of insanity’ relative to a charge of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised Code, that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person‘s acts.”
{¶ 16} “[T]he standard for competency is different, in that it relates to the defendant‘s present mental condition and his ability to understand the nature of the proceedings against him and to assist his counsel in his defense.” Monford at ¶ 69. A defendant is presumed to be competent unless it is demonstrated by a preponderance of the evidence that he is incapable of understanding the nature and objective of the proceedings against him or of
{¶ 17} Having reviewed the record in the present case, we find that appellant‘s ineffective assistance of counsel claim fails on both the deficiency prong and the prejudice prong. There is nothing in the record to suggest that appellant was incompetent or that he was not guilty by reason of insanity at the time he violated the terms of his community control. Rather, based on defense counsel‘s representations and the trial court‘s dialogue with appellant at the community control violation hearing and at sentencing, the record suggests the contrary. Appellant was capable of understanding the nature and objective of the violation proceedings against him, capable of assisting his defense, and capable of making an informed, voluntary, and intelligent decision to enter an admission to the violations. Counsel was therefore not deficient for not requesting a competency or NGRI evaluation when such a request would have been frivolous. “An attorney is not ineffective for failing to make a futile or frivolous request.” State v. White, 12th Dist. Madison Nos. CA2021-05-007 and CA2021-05-008, 2022-Ohio-2182, ¶ 14. See also State v. Powers, 12th Dist. Clermont No. CA2021-06-026, 2021-Ohio-4357, ¶ 19 (“Defense counsel appeared to have no reasoned basis to conclude appellant was incompetent to stand trial and counsel is not ineffective for not raising a futile issue“).
{¶ 18} Furthermore, appellant cannot demonstrate he was prejudiced by counsel‘s decision not to request NGRI and competency evaluations. The record demonstrates appellant only wanted the evaluations to delay proceedings on his community control violations and not because he was experiencing an inability to understand the nature of the proceedings, to assist in his defense, or because, at the time of the commission of the offenses, he did not know, as a result of a severe mental disease or defect, the
{¶ 19} Appellant‘s first assignment of error is therefore overruled.
{¶ 20} Assignment of Error No. 2:
{¶ 21} THE TRIAL COURT ERRED TO THE PREJUDICE OF RICKY LEE PACK BY ORDERING HIM TO SERVE A PRISON TERM.
{¶ 22} In his second assignment of error, appellant argues the trial court erred by ordering him to serve an excessive prison term for what he contends “amounts to, basically, low-degree felonies” for which “[t]he only victim in his cases is society at large; there is no specific victim.”
{¶ 23} “We review the trial court‘s sentencing decision for a community control violation under the standard of review set forth by
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
“A sentence is not clearly and convincingly contrary to law where the trial court ‘considers the principles and purposes of
{¶ 24} Appellant does not argue that the trial court improperly imposed consecutive sentences under
{¶ 25} ”
{¶ 26} Given the supreme court‘s holding in Jones, we are precluded from reviewing a felony sentence where, as here, appellant‘s sole contention is that the trial court improperly considered the factors of
{¶ 27} Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.