[Cite as State v. Thompson,
2021-Ohio-2632.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA 2020-11-115
Appellee, : OPINION
8/2/2021
:
- vs -
:
CODY N. THOMPSON, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY AREA I COURT
Case No. CRB2000439A&B
Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, for
appellee.
Mark W. Raines, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Cody Thompson, appeals his conviction in the Butler County Area
I Court for criminal trespass and menacing by stalking. For the reasons set forth below, we
reverse appellant's conviction and remand the matter for further proceedings.
{¶ 2} In June 2020, appellant was charged with criminal trespass and menacing by
stalking. Appellant filed a plea of not guilty by reason of insanity and a motion to determine
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competency to stand trial. The trial court ordered a forensic evaluation for competency
(R.C. 2945.371) and sanity (R.C. 2945.39). Appellant was not cooperative with the
evaluator; as a result, the initial evaluation was inconclusive regarding appellant's
competency to stand trial. The evaluator further stated she was unable to complete the
sanity evaluation requested by the court. On August 13, 2020, the trial court journalized an
entry finding appellant incompetent to stand trial and ordering him to undergo 20 days of
treatment at the Summit Behavioral Healthcare Center ("Summit Behavioral") pursuant to
R.C. 2945.38.
{¶ 3} On September 3, 2020, a forensic evaluation from Summit Behavioral was
filed in the trial court, indicating that appellant was "currently COMPETENT to stand trial."
The report was ostensibly admitted as a joint exhibit on September 10, 2020, as follows1:
DEFENSE ATTORNEY: We would ask the Court to accept the
exhibit. We'll mark it Joint Exhibit No. 1 from the Summit
Behavioral.
TRIAL COURT: All right. Obviously, we are all in agreement?
PROSECUTOR: Yes, Your Honor.
TRIAL COURT: Okay. Now, with that being said, [defense
attorney], how are we proceeding?
DEFENSE ATTORNEY: We are going to ask the Court to set it
for trial on October the 1st.
TRIAL COURT: Okay. October 1st, bench trial. Not guilty on
the A [menacing by stalking] and B [criminal trespass] charge?
DEFENSE ATTORNEY: Yes.
{¶ 4} The trial court did not rule on appellant's competency to stand trial during the
September 10, 2020 hearing. Furthermore, the trial court did not issue an entry finding
1. Following the admission of the joint exhibit, the parties briefly discussed the issue of bond, the trial court
set a bond on both charges, and the hearing concluded.
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appellant competent to stand trial. A bench trial was held on October 1, 2020. Appellant
was found guilty on both charges.
{¶ 5} Appellant appeals, raising five assignments of error. Because we find that
appellant's fifth assignment of error is dispositive of the case, we address it first.
{¶ 6} Assignment of Error No. 5:
{¶ 7} THE TRIAL COURT ERRED IN PROCEEDING TO TRIAL WITHOUT
RULING ON WHETHER OR NOT APPELLANT WAS COMPETENT TO STAND TRIAL.
{¶ 8} Appellant argues that the trial court violated R.C. 2945.38 by proceeding to
trial without first determining whether appellant was competent to stand trial. Specifically,
appellant argues that the trial court failed to conduct a hearing to determine whether
appellant had been restored to competency and failed to make a finding that appellant was
competent to stand trial before conducting the bench trial.
{¶ 9} Fundamental principles of due process require that a criminal defendant who
is not competent to stand trial may not be tried and convicted. State v. Braden, 98 Ohio
St.3d 354,
2003-Ohio-1325, ¶ 114. 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 presently assisting in his
defense. R.C. 2945.37(G); State v. Murphy,
173 Ohio App.3d 221,
2007-Ohio-4535, ¶ 28
(12th Dist.).
{¶ 10} R.C. 2945.37 requires a trial court to conduct a competency hearing if the
issue of a defendant's competency is raised prior to trial. R.C. 2945.37(B). If the trial court
finds "by a preponderance of the evidence that, because of the defendant's present mental
condition, the defendant is incapable of understanding the nature and objective of the
proceedings against the defendant or of assisting in the defendant's defense, the court shall
find the defendant incompetent to stand trial and shall enter an order authorized by [R.C.]
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2945.38." R.C. 2945.37(G).
{¶ 11} R.C. 2945.38 governs the disposition of a defendant after an initial
determination that the defendant is not competent to stand trial and sets forth the
procedures for treatment and evaluation orders. As pertinent to this appeal, R.C.
2945.38(H) provides that
If a defendant is committed pursuant to division (B)(1) of this
section [for treatment to restore competency], … within thirty
days after being advised by the treating physician or examiner
that the defendant is competent to stand trial, whichever is the
earliest, the court shall conduct another hearing to determine if
the defendant is competent to stand trial and shall do whichever
of the following is applicable:
(1) If the court finds that the defendant is competent to stand
trial, the defendant shall be proceeded against as provided by
law.
(Emphasis added.) In applying R.C. 2945.38(H), the Eighth District Court of Appeals has
held that, once a defendant is declared incompetent and after the trial court has received
notice that the defendant is competent to stand trial, the trial court must comply with R.C.
2945.38, hold another hearing, and specifically find that competency has been restored
prior to proceeding to trial. State v. McGrath, 8th Dist. Cuyahoga No. 91261, 2009-Ohio-
1361, ¶ 19, citing State v. Jackson, 8th Dist. Cuyahoga No. 82652, 2004-Ohio-3474, ¶ 13.
{¶ 12} In McGrath, the defendant was initially found incompetent to stand trial and
was ordered to undergo treatment for competency restoration. During a subsequent
change of plea hearing, the trial court accepted the defendant's guilty plea to menacing by
stalking. The defendant challenged his conviction, arguing that the trial court erred in
accepting his change of plea without first determining whether his competency had been
restored. The Eighth District Court of Appeals found that the trial court
failed to address the findings of the second competency
evaluation at the change of plea hearing or make the report part
of the record. Additionally, the parties did not stipulate to the
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examiner's report. The docket contains no judgment entry
reflecting that the trial court found that competency had been
restored, let alone that the issue had been heard. Indeed, apart
from the trial judge's single reference at the plea hearing that
McGrath had been "interviewed" after his initial incompetency
determination and "they said he's fine," the record is silent on
the issue of his competency being restored.
McGrath at ¶ 21. The court of appeals then held, "given the dictates of R.C. 2945.38 and
our holding in Jackson, we find that the trial court erred by accepting McGrath's change of
plea without first holding a hearing on his competency and specifically finding that
competency had been restored." Id. The court of appeals vacated the defendant's guilty
plea and remanded the case for further proceedings.
{¶ 13} This court recently reversed a criminal conviction on the ground that a trial
court had failed to determine the defendant's competency to stand trial before accepting his
guilty plea. State v. Whitling, 12th Dist. Butler No. CA2016-10-202, 2018-Ohio-1360.
Whitling involved an initial competency hearing under R.C. 2945.37. During the brief
hearing, the trial court referred to a competency report (it was not admitted into evidence)
and stated on the record that the defendant was competent to stand trial. Despite the trial
court's explicit finding on the record that the defendant was competent, this court held that
the trial court's failure to memorialize the competency finding in a journal entry was
reversible error:
We are troubled, however, by the trial court's failure to make a
determination of appellant's competency to stand trial prior to
the court accepting appellant's guilty plea. R.C. 2945.38(A)
provides that after a competency hearing has been held, "the
defendant shall be proceeded against as provided by law" only
if the trial court "finds that the defendant is competent to stand
trial." (Emphasis added.) The fact that the trial court stated at
the competency hearing, "He [appellant] is competent to stand
trial" is insufficient, as it is well-established that "a court speaks
only through its journal entries." State v. Marcum, 12th Dist.
Butler Nos. CA2005-10-431 and CA2005-10-446, 2006-Ohio-
2514, ¶ 5, citing State v. Mincy, 2 Ohio St.3d 6, 8 (1982). Here,
the trial court failed to issue an entry finding appellant competent
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to stand trial. As such, appellant's competence to stand trial
remained an outstanding issue that precluded the trial court
from making a reliable determination of the appellant's ability to
enter a knowing, intelligent, and voluntary plea.
Whitling at ¶ 17.
{¶ 14} Finding that the trial court erred in accepting the defendant's guilty plea
without first determining his competency, this court reversed the trial court's judgment,
vacated the defendant's guilty plea and sentence, and remanded the matter to the trial court
with instructions to determine the defendant's competency based upon the record of the
competency hearing. Id. at ¶ 22, 26.
{¶ 15} Following the initial inconclusive evaluation, the trial court found appellant to
be incompetent to stand trial and ordered him to undergo treatment at Summit Behavioral.
On September 3, 2020, a forensic evaluation from Summit Behavioral was filed in the trial
court, indicating that appellant was competent to stand trial. A week later, a document from
Summit Behavioral was admitted as a joint exhibit during the September 10, 2020 hearing.
The parties did not indicate what the document was, its date, or its contents. It is presumed
to be the forensic evaluation filed by Summit Behavioral on September 3, 2020, and
indicating that appellant was competent.
{¶ 16} During the September 10, 2020 hearing, the parties did not discuss or
stipulate to the findings of the forensic evaluation. Neither appellant nor defense counsel
stipulated to a finding of competency. Contrary to the state's assertion, the fact that the
parties offered the forensic evaluation as a joint exhibit is not a stipulation by appellant that
he was competent to stand trial. Rather, admitting the forensic evaluation as a joint exhibit
merely dispensed with the necessity of calling the examining psychologist as a witness.
There is no stipulation in the record that appellant was competent to stand trial.
{¶ 17} During the hearing, the trial court did not address or state the findings of the
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forensic evaluation. Furthermore, the trial court did not state on the record that appellant
was competent to stand trial. Thereafter, the trial court did not journalize an entry finding
that appellant was competent to stand trial. When the parties offered the forensic evaluation
as a joint exhibit, the trial court only stated, "[W]e are all in agreement[.]" The statement is
ambiguous in that it just as likely refers to an agreement to dispense with the testimony of
the examining psychologist or an agreement that appellant was competent to stand trial.
We refuse to construe the lone statement as the trial court accepting the findings of the
forensic evaluation or finding that appellant was competent to stand trial. We will not
speculate or guess about the import of this ambiguous record.
{¶ 18} Likewise, we decline to construe the fact that the trial court proceeded to trial
as an indication that the court found appellant competent to stand trial. Holding that
proceeding to trial is a substitute for the mandatory finding of competency to stand trial
would improperly relieve the trial court of its statutory mandate to determine a defendant's
competency to stand trial, would improperly presume that a defendant is competent to stand
trial because he stood trial, and would render R.C. 2945.38 meaningless.
{¶ 19} R.C. 2945.38(H) plainly provides that once a trial court is advised that a
defendant is competent to stand trial following treatment to restore competency, the court
"shall conduct another hearing to determine if the defendant is competent to stand trial."
Furthermore, "the defendant shall be proceeded against as provided by law" only if the trial
court "finds that the defendant is competent to stand trial." Id. As this court stated in
Whitling, "[o]nce the issue of competency has been raised, the procedures set forth in R.C.
2945.37 and 2945.38 are required to be followed so that the question of appellant's
competence to stand trial may be put to rest. Until the trial court resolves this issue by
putting an entry, there remains an issue as to whether appellant is competent to stand trial."
Whitling, 2018-Ohio-1360 at ¶ 22. While the trial court specifically found appellant
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incompetent to stand trial after the initial evaluation and consequently committed him for
treatment, the court subsequently failed to make any finding that appellant's competency
had been restored before proceeding to trial. As such, appellant's competence to stand
trial remained an outstanding issue when the trial court conducted the bench trial. Whitling,
2018-Ohio-1360 at ¶ 17.
{¶ 20} In light of the foregoing, and given the dictates of R.C. 2945.38(H) and this
court's holding in Whitling, we find that the trial court's failure to find that appellant's
competency to stand trial had been restored and memorialize that finding in a journal entry
is reversible error. Appellant's fifth assignment of error is sustained.
{¶ 21} Assignment of Error No. 1:
{¶ 22} THE TRIAL COURT ERRED IN ALLOWING THE TRIAL TO PROCEED
WITHOUT A SPECIFIC FINDING IN THE FORENSIC EVALUATION REGARDING
WHETHER APPELLANT HAD A MENTAL DEFECT AT THE TIME OF THE INCIDENTS
THAT MADE APPELLANT UNABLE TO UNDERSTAND THE WRONGFULNESS OF HIS
ACTIONS.
{¶ 23} Assignment of Error No. 2:
{¶ 24} THE TRIAL COURT'S FINDING OF GUILTY IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AS THE WEIGHT OF THE EVIDENCE PROVES
APPELLANT COULD NOT HAVE KNOWINGLY ENGAGED IN THE KIND OF CONDUCT
NECESSARY TO BE FOUND GUILTY UNDER 2903.211 OF THE OHIO REVISED CODE.
{¶ 25} Assignment of Error No. 3:
{¶ 26} THE TRIAL COURT ERRED IN FINDING [APPELLANT] GUILTY AS
EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO PROVE [APPELLANT]
CAUSED [THE VICTIM] MENTAL DISTRESS AS REQUIRED UNDER R.C. 2903.211.
{¶ 27} Assignment of Error No. 4:
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{¶ 28} COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT PROCEEDING
TO TRIAL WITHOUT A FORENSIC DETERMINATION AS TO APPELLANT'S MENTAL
STATE AT THE TIME OF THE INCIDENT, CONSTITUTES INEFFECTIVE ASSISTANCE
OF COUNSEL.
{¶ 29} In his remaining assignments of error, appellant (1) argues that the trial court
erred in proceeding to trial without first determining appellant's mental condition at the time
of the offenses, (2) challenges his menacing by stalking conviction, arguing the state failed
to show that he acted knowingly and that the victim suffered mental distress, and (3) raises
errors his attorney allegedly committed in rendering his defense. Based on our resolution
of appellant's fifth assignment of error, we need not address appellant's first, second, third,
and fourth assignments of error. See App.R. 12(A)(1)(c); Whitling, 2018-Ohio-1360 at ¶ 25.
{¶ 30} For the reasons stated above, judgment is reversed, appellant's conviction
and sentence are vacated, and the matter is remanded to the trial court with instructions to
determine whether appellant's competency to stand trial has been restored in accordance
with the requirements of R.C. 2945.38(H) and for such further proceedings as are
appropriate consistent with this opinion.
S. POWELL and BYRNE, JJ., concur.
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