STATE OF OHIO, PLAINTIFF-APPELLEE, v. KENNETH J. SCOTT, DEFENDANT-APPELLANT.
CASE NO. 1-21-51
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
August 15, 2022
[Cite as State v. Scott, 2022-Ohio-2820.]
SHAW, J.
Appeal from Allen County Common Pleas Court Trial Court No. CR2002 0402 Judgment Affirmed
Chima R. Ekeh for Appellant
Jana E. Emerick for Appellee
SHAW, J.
{¶1} Defendant-Appellant, Kenneth J. Scott (“Scott”), appeals the October 15, 2021 judgment of the Allen County Court of Common Pleas, journalizing his conviction after pleading guilty to second-degree felonious assault with a firearm specification and having weapons while under disability, a third-degree felony, and sentencing him to an aggregate indefinite prison term of four to six years on the two offenses, consecutive to a three-year mandatory term on the firearm specification.
Background
{¶2} On December 17, 2020, Scott was charged in a two-count indictment with the offense of Count 1, felonious assault, in violation of
{¶3} On the morning of trial, September 7, 2021, defense counsel filed a “Motion Suggesting the Defendant is Not Competent to Stand Trial,” requesting the trial court to order an evaluation, pursuant to
{¶5} Meanwhile, the trial court received information from the jail nurse about the medications being taken by Scott and the court provided counsel with that information before the court adjourned for the day. When the trial court reconvened
{¶6} On October 15, 2021, a sentencing hearing was held. The trial court found that the offenses in Counts 1 and 2 did not merge. The trial court imposed a prison term of four to six years on the second-degree felonious assault count, with a three-year mandatory prison term for the firearm specification to be served consecutive and prior to the indefinite term, and a prison term of eighteen months on the third-degree weapons under disability count to be served concurrently with the four-year term.
{¶7} Scott now appeals, asserting the following assignments of error for our review.
APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION IN THAT HE WAS INCOMPETENT TO STAND TRIAL OR TO TAKE A PLEA.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN FAILING TO MERGE THE WEAPON UNDER DISABILITY WITH THE FELONIOUS ASSAULT.
ASSIGNMENT OF ERROR NO. 3
R.C. 2967.271 (THE REAGAN TOKES LAW) VIOLATED APPELLANT’S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16, OF THE OHIO CONSTITUTION.
First Assignment of Error
{¶8} In his first assignment of error, Scott argues that his right to due process was violated because the trial court erred by not finding him incompetent to stand trial or in later accepting his guilty plea.
Applicable Law and Standard of Review
{¶9} “[A] defendant is presumed to be competent to stand trial, and the burden is on the defendant to prove by a preponderance of the evidence that he is not competent.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 32, citing State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶ 28;
{¶10} The test for determining a defendant’s competency to stand trial is “ ‘ “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” ’ ” Neyland, citing State v. Berry, 72 Ohio St.3d 354, 359 (1995), quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788 (1960), quoting the argument of then Solicitor General J. Lee Rankin. The constitutional standard for determining a defendant’s competency to stand trial and his competency to enter a guilty plea are the same. State v. Purdy, 3d Dist. Auglaize No. 2-21-16, 2022-Ohio-1131, ¶ 8.
{¶11} We review a trial court’s decision on competency for an abuse of discretion. Id. Additionally, when reviewing a trial court’s decision, deference on
Analysis
{¶12} In this case, Scott contends the record contains sufficient indicia of incompetence to stand trial based on a video recording of the police interview with Scott and his uncooperative behavior with defense counsel in final trial preparation. Scott further contends that his disruptive behavior during the trial, and subsequently during the plea, should have caused the trial court to sua sponte conduct further inquiry by an additional hearing or order a competency evaluation prior to proceeding with the trial or taking Scott’s plea.
{¶13} The record reflects that defense counsel filed the motion questioning Scott’s competency to stand trial after Scott, who appeared agitated, began acting erratically and refusing to cooperate with counsel when counsel went to visit him at the jail three days before the trial was to start, and also because Scott had originally claimed to be hearing voices at the time of the November 2020 police interview. However, defense counsel also recounted for the trial court the history of his representation of Scott over the prior eight months and counsel noted that at no time during that representation did counsel feel Scott might be incompetent. Counsel specifically noted that he was aware Scott had some mental health issues, but confirmed that during the course of the representation Scott had never acted in a
{¶14} The State then introduced into evidence recordings of Scott’s telephone calls to his girlfriend from the jail that had been made the preceding day. The State argued those recorded conversations show that Scott indicated a clear understanding of the nature and objectives of the court proceedings and an ability to assist in his defense.
{¶15} Then, upon further inquiry by the trial court, defense counsel confirmed that he had always been able to discuss the case with Scott, had provided and reviewed discovery with him, and had been able to talk to him about trial strategies and plea deals. When asked whether Scott had anything to tell the court, Scott said that he was going to remain silent.
{¶16} In reaching the ultimate finding that Scott was competent to stand trial, the trial court judge noted that she had interacted with Scott in court numerous times throughout the pendency of his case and had observed his ability to articulate things and to understand issues relating to the case, as well as noted the course of defense counsel’s contact with Scott. Additionally, the trial court noted that the jail phone call recordings from the day before reflected that Scott understood the role of defense counsel, as well as the roles of the prosecutor and the court, that he
{¶17} In addition, the record reflects no significant change in Scott’s behavior after the start of the trial that would create doubt as to whether he was incompetent as constitutionally defined. The record further reflects the trial court judge, based on, again, listening to the recorded phone calls, indicated that Scott’s behavior was a result of his temper, not a mental problem. The record also reflects that Scott understood the nature of the ultimate plea proceedings.
{¶18} Based on our review, we conclude the record does not show any abuse of discretion on the part of the trial court with respect to the determination of Scott’s competency to stand trial or with respect to the taking of his plea with respect thereto. Scott’s first assignment of error is overruled.
Second Assignment of Error
{¶19} In his second assignment of error, Scott claims the trial court erred in failing to merge the conviction for weapons under disability in Count 2 with his
{¶20} Pursuant to
{¶21} “As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
- Were the offenses dissimilar in import or significance?
- Were they committed separately? and
- Were they committed with separate animus or motivation?
An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 31. Prince at ¶ 10.
{¶22} Other appellate districts have held that having weapons while under disability and felonious assault generally do not merge, because the charges do not involve the same animus. See, e.g., State v. Frazier, 2d Dist. Clark No. 2021-CA-46, 2021-Ohio-4155 and State v. Elder, 5th Dist. Richland No. 2011-CA-00058, 2011-Ohio-4438. As stated by the Fifth District Court of Appeals in Elder, “ ‘the animus of having weapons under disability is making a conscious choice to possess a weapon. Felonious assault requires a conscious choice to attack someone using a weapon.’ ” Frazier at ¶ 22, quoting Elder at ¶ 7.
{¶23} Citing to the Ruff case, Scott’s defense counsel’s sentencing memorandum summarily indicated that the offenses in this case do not merge. The trial court was satisfied upon the facts that there was no merger of the two offenses
{¶24} The second assignment of error is overruled.
Third Assignment of Error
{¶25} In his third assignment of error, Scott contends that the indefinite sentence of incarceration imposed on Count 1 pursuant to the Reagan Tokes law is unconstitutional as a violation of his due process rights.
{¶26} We first note that Scott did not challenge the constitutionality of the Reagan Tokes law before the trial court. For this reason, we apply the plain-error standard of review in this case. Accord State v. Ball, 3d Dist. Allen No. 1-21-16, 2022-Ohio-1549, ¶ 57. “An error qualifies as ‘plain error’ only if it is obvious and
{¶27} As this Court also noted in Ball, challenges to the Reagan Tokes law do not present a matter of first impression in this Court. Ball at ¶ 59. “Since the indefinite sentencing provisions of the Reagan Tokes Law went into effect in March 2019, we have repeatedly been asked to address the constitutionality of these provisions. We have invariably concluded that the indefinite sentencing provisions of the Reagan Tokes Law do not * * * infringe on defendants’ due process rights.” Id. citing e.g., State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 10-11; State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048, ¶ 22; State v. Wolfe, 3d Dist. Union No. 14-21-16, 2022-Ohio-96, ¶ 21.
{¶28} On the basis of Ball and our prior precedent, this Court finds no merit to Scott’s contention. The third assignment of error is overruled.
{¶29} Accordingly, the judgment of the Allen County Common Pleas Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
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