[Cite as State v. Cunningham,
2023-Ohio-4305.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 23CA2
v. :
KENNETH E. CUNNINGHAM, Jr. : DECISION AND JUDGMENT ENTRY
AKA BRYAN C. SATTELMYER
:
Defendant-Appellant.
_________________________________________________________________
APPEARANCES:
Christopher J. Pagan, Middletown, Ohio, for appellant1.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry
M. Saunders, Assistant Prosecuting Attorney, Athens, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:11-16-23
ABELE, J.
{¶1} This is an appeal from an Athens County Common Pleas
Court judgment of conviction and sentence. Kenneth Cunningham, aka
Bryan Sattelmyer, defendant below and appellant herein, assigns two
errors for review:
FIRST ASSIGNMENT OF ERROR:
“SATTELMYER’S ALFORD PLEA WAS UNLAWFUL.”
1
Different counsel represented appellant during the trial
court proceedings.
2
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SECOND ASSIGNMENT OF ERROR:
“SATTELMYER’S REAGAN TOKES SENTENCE WAS
UNLAWFUL.”
{¶2} In January 2020, an Athens County Grand Jury returned a
ten-count indictment that charged appellant with (1) two counts of
rape in violation of R.C. 2907.02(A)(1)(b), first-degree felonies,
(2) four counts of rape in violation of R.C. 2907.02(A)(2), first-
degree felonies, (3) one count of gross sexual imposition in
violation of R.C. 2907.05(B), a third-degree felony, (4) two counts
of gross sexual imposition in violation of R.C. 2907.05(A)(1),
fourth-degree felonies, and (5) one count of having weapons while
under disability in violation of R.C. 2923.13(A)(2), a third-degree
felony. Appellant pleaded not guilty to all charges.
{¶3} On September 8, 2020, the state filed a notice of alias
that appellant has been known as Bryan Sattelmyer, Kenneth E.
Cunningham Jr., Kenneth Cunningham, Kenneth E. Cunningham, Kenneth
Cunningham, Jr., Casey Cunningham, Bryan Sattelmyer, Bryan Casey
Sattelmyer, and KC Cunningham. Subsequently, appellant filed a
motion to suppress evidence and a motion for a bill of particulars.
On October 9, 2020, the state filed a bill of particulars.
{¶4} On November 19, 2020, the state filed a notice of
3
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violation of bond. The state alleged that appellant instructed his
son to contact a family member of one of the minor victims, in
violation of the trial court’s no-contact order.
{¶5} Appellant also filed a motion for reconsideration of bond
and argued that he did not change his name to allow him to commit
crimes, but rather “because his stepfather had never legally
adopted him, thus, the two names.” The supporting memo also
alleged that, after arraignment, appellant’s mental and physical
health “had deteriorated to the point he may not be competent to
stand trial,” and the jail ignored his complaints.
{¶6} The state’s memo contra asserted that Cortney Hottinger,
the LPN from the behavioral health center who allegedly had spoken
with jail nursing staff, is appellant’s friend and “had been
speaking to him regularly on recorded jail phone calls. She is
also best friends with Amanda Seals-Defendant’s fiancé - who is
currently under indictment for Intimidation of a Victim and
Intimidation of a Witness.” The state further alleged that (1) it
subpoenaed appellant’s medical information from the jail and
learned he made no health complaints during his incarceration, (2)
appellant’s healthcare power of attorney listed Hottinger, and is a
conflict of interest if she acted as his nurse, (3) appellant’s
healthcare power of attorney listed two witnesses (Summer Ward and
4
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Natalie Dorman) who did not appear at the jail to witness
appellant’s signature, (4) the state’s analyst listened to several
recorded jail phone calls between appellant and Hottinger, and
between appellant and Amanda Seals, and determined that Hottinger,
Seals, Ward, and Dorman worked together at Access Ohio, a
behavioral health center in Heath, Ohio, and Access Ohio had
terminated all four employees for improprieties. It is unclear
whether the trial court ruled on the motion for reconsideration of
bond.
{¶7} On April 21, 2021, the state amended the indictment to
reflect appellant’s name as “Kenneth E. Cunningham Jr., AKA Bryan
C. Sattelmyer.” The trial court also granted appellant’s motion
for a competency evaluation and ordered the examiner to file a
written report within 30 days.
{¶8} On June 29, 2021, appellant’s trial counsel filed a
motion to withdraw and stated that although appellant had witnesses
prepared to testify at trial, “two of those witnesses have now been
charged with crimes” and other witnesses “now refuse to [testify]
or will not do so.” Counsel also stated that he had filed a
grievance because the state’s actions violated appellant’s right to
due process. The state responded that a grand jury had returned
indictments that charged all four defendants with forgery,
5
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tampering with records, telecommunications fraud, and identity
fraud. On July 6, 2021, the trial court appointed another attorney
to represent appellant.
{¶9} Subsequently, the state moved to: (1) amend Count One
from a violation of R.C. 2907.02(A)(1)(b) to R.C. 2907.02(A)(2) to
charge that appellant had sexual conduct by force or threat of
force with the victim whose initials are ZA, (2) amend the date
range on that count from July 11, 2019 to May 31, 2020, and (3)
dismiss the remaining counts of the indictment.
{¶10} On January 6, 2022, appellant entered a guilty plea,
pursuant to North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160,
27
L.Ed.2d 162 (1970), to: (1) Amended Count 1 in violation of R.C.
2907.02(A)(2), a first-degree felony with a prison term of 3 to 11
years and a possible $20,000 fine, and (2) Count 5 in violation of
R.C. 2907.02(A)(2), a first-degree felony with a prison term of 3
to 11 years and possible $20,000 fine. The plea agreement included
a joint recommendation of an 8-to 12-year prison sentence (with 8
years mandatory) on Count 1, to be served concurrently to the 8
years for Count 5, for a total aggregate sentence of 8 to 12 years
in prison. In addition, appellant agreed to Tier III sex offender
registration.
{¶11} After the trial court accepted appellant’s pleas, the
6
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court: (1) imposed an 8-to 12-year mandatory prison sentence for
Count One (eight years mandatory), (2) imposed an 8-to 12-year
mandatory prison sentence for Count Five, (3) ordered the counts to
be served concurrently, (4) ordered appellant to pay costs, (5)
ordered appellant to register as a Tier III sex offender, and (6)
ordered a mandatory five-year post-release control term. This
appeal followed.2
I.
{¶12} In his first assignment of error, appellant asserts that
(1) he failed to enter his Alford plea on the record, (2) the trial
court failed to adequately explain Alford or perform a heightened
Alford inquiry, and (3) the court failed to determine appellant’s
competency.
{¶13} Crim.R. 11(A) provides, in pertinent part, that “[a]
defendant may plead not guilty, not guilty by reason of insanity,
guilty or, with the consent of the court, no contest.” A “plea of
guilty is a complete admission of the defendant's guilt.” Crim.R.
11(B)(1). However, pursuant to North Carolina v. Alford, 400 U.S.
2
On December 20, 2022, this court dismissed appellant’s
initial appeal because the record was unclear whether the trial
court dismissed counts two, three, four, six, seven, eight, nine,
and ten of the indictment. Thus, the trial court’s judgment did
not constitute a final appealable order. The trial court’s
January 10, 2023 entry dismissed the “hanging charges.”
7
ATHENS, 23CA2
25, 91 S.Ct. 160,
27 L.Ed.2d 162 (1970), a criminal defendant may
believe he or she is innocent of the charges, but reluctantly
conclude that the evidence is so incriminating that a significant
likelihood exists that a jury would return a guilty verdict. An
Alford plea “is predicated upon the defendant's desire to obtain a
lesser penalty rather than risk the consequences of a jury trial.”
State v. Krieg, 9th Dist. Lorain No. 04CA008442,
2004-Ohio-5174, ¶
9, citing State v. Piacella,
27 Ohio St.2d 92,
271 N.E.2d 852
(1971), syllabus. Therefore, it is a “species” of guilty plea.
State v. Watson, 6th Dist. Lucas No. L–13–1089,
2014-Ohio-2839, ¶
16; State v. Hart, 7th Dist. Belmont No. 14 BE 0025, 2016-Ohio-
1008, ¶ 14.
{¶14} An Alford plea is procedurally indistinguishable from a
guilty plea in that it severely limits the errors which may be
claimed on appeal. State v. McDay, 6th Dist. Lucas No. L–96–027,
1997 WL 243584, *2 (May 9, 1997). However, it differs from a
guilty plea because, before accepting an Alford plea, a court must
evaluate the reasonableness of a defendant's decision to plead
guilty, notwithstanding the protestation of innocence. State v.
Karsikas, 11th Dist. Ashtabula No. 2014–A–0065,
2015-Ohio-2595, ¶
18. This requires a presentation of some basic facts that surround
the charge from which a court may determine whether an accused has
8
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made an intelligent and voluntary guilty plea. Krieg at ¶ 14;
State v. Drzayich, 2016-Ohio-1398,
62 N.E.3d 850, ¶ 13 (6th Dist.).
{¶15} When a defendant contends that a guilty plea is invalid
because a court failed to comply with nonconstitutional
requirements of Crim.R. 11(C)(2)(a) and (b), or the constitutional
requirements of Crim.R. 11(C)(2)(c) or the Alford requirements, 400
U.S. 25,
91 S.Ct. 160, (1970), a reviewing court must undertake a
de novo review. State v. Hughes, 4th Dist. Highland No. 20CA2,
2021-Ohio-111, ¶ 6, citing State v. Cassell,
2017-Ohio-769,
79
N.E.3d 588, ¶ 30 (4th Dist.).
{¶16} The United States Supreme Court held that a court may
accept a guilty plea, notwithstanding a defendant’s claim of
innocence, “when … a defendant intelligently concludes that his
interests require entry of a guilty plea and the record before the
judge contains strong evidence of actual guilt.” Alford, 400 U.S.
at 37. A court in an Alford case has a “heightened duty upon the
trial court to ensure that the defendant’s rights are protected and
that entering the plea is a rational decision on the part of the
defendant.” State v. Carey, 3d Dist. Union No. 14-10-25, 2011-
Ohio-1998, ¶ 7.
{¶17} When a defendant enters an Alford plea, “[t]he trial
judge must ascertain that notwithstanding the defendant’s
9
ATHENS, 23CA2
protestations of innocence, he has made a rational calculation that
it is in his best interest to accept the plea bargain offered by
the prosecutor.” State v. Padgett, 67 Ohio App.3d 332, 338,
586
N.E.2d 1194 (2d Dist.1990). Further, the standard to determine an
Alford plea’s validity is “whether the plea represents a voluntary
and intelligent choice among the alterative courses of action open
to the defendant.” Alford,
400 U.S. at 31. The Supreme Court of
Ohio determined that this standard is met:
Where the record affirmatively discloses that: (1)
defendant’s guilty plea was not the result of coercion,
deception or intimidation; (2) counsel was present at the
time of the plea; (3) counsel’s advice was competent in
light of the circumstances surrounding the indictment; (4)
the plea was made with the understanding of the nature of
the charges; and, (5) defendant was motivated either by a
desire to seek a lesser penalty or a fear of the
consequences of a jury trial, or both, the guilty plea has
been voluntarily and intelligently made.
Piacella, 27 Ohio St.2d 92,
271 N.E.2d 852 (1971), paragraph one of
the syllabus.
Where a defendant enters an Alford plea, the trial court
must inquire into the factual basis surrounding the charges
to determine whether the defendant is making an intelligent
and voluntary guilty plea. The trial court may accept the
guilty plea only if a factual basis for the guilty plea is
evidenced by the record. “When taking an Alford plea, the
trial court cannot determine whether the accused was making
an intelligent and voluntary guilty plea absent some basic
facts surrounding the charge, demonstrating that the plea
cannot seriously be questioned.” “An Alford plea may not
be accepted when the record fails to demonstrate facts upon
which the trial court can resolve the apparent conflict
between a defendant’s claim of innocence and the
10
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defendant’s desire to plead guilty to the charges.”
(Citations omitted.)
State v. Redmond, 7th Dist. Mahoning No. 17 MA 0068, 2018-Ohio-
2778, ¶ 11, quoting State v. Alvedo, 2017-Ohio-742,
85 N.E.3d 1032,
¶ 23 (8th Dist.).
{¶18} In the case sub judice, appellant first contends that,
although he signed a plea agreement to enter an Alford plea, he did
not, in fact, enter his plea on the record. Instead, appellant
alleges he “merely told the court he intended to do that … [s]o
his convictions were a nullity.” We disagree. Here, appellant
affirmatively acknowledged his intention to enter a plea and the
transcript reveals that the trial court stated: “Keeping all these
rights in mind is it your wish to waive these rights and enter an
Alford Plea of Guilty to counts one and five of the indictment as
amended?” Appellant replied, “Yes your honor I do.”
{¶19} Appellant next argues that the trial court failed to
engage in the required heightened Alford inquiry. In the case sub
judice, at the January 6, 2022 change of plea hearing the state
asked the trial court to amend count one of the ten count
indictment from a violation of R.C. 2907.02(A)(1)(b) to R.C.
2907.02(A)(2):
which would … show that the Defendant has sexual conduct
by force or threat of force with the victim whose initials
are ZA. And we would also ask the Court to grant the
11
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State’s request for amendment of the date range on that
particular count to be on or about July 11th of 2019 up to
and including May 31 of 2020 as written in the plea
agreement. In addition there is a count five. … [T]here
is no amendment with that particular count. Uh, the
Defendant is going to change his plea to guilty. Pursuant
to that count and it was that the Defendant engaged in
sexual conduct with the victim by compelling her to submit
by force or threat of force. Obviously with regard to
those two charges uh, the Defendant is entering his plea
pursuant to a North Carolina vs. Alford. So although he
is not admitting his guilt here today. Uh, he is entering
or changing his plea to guilty pursuant to that particular
case. The State would ask the Court to dismiss the
remainder of the counts as indicated. The Defendant has
agreed to the amendment on count one and would waive any
procedural issues on those, on that amendment. Again, as
stated in the plea agreement just to, for purposes of this
Court he is changing his plea pursuant to North Carolina
vs. Alford. There would be a joint recommendation that
the Defendant would be sentenced to eight to twelve years
on count one as amended. With the eight years being
mandatory. And then eight years on count five for a total
of aggregate sentence of eight to twelve years in prison.
With regard to an F1 Rape charge. It is required that he
be subject to Tier III registration, sexual, sexual
offender registration and PRC would remain mandatory for
five years. HE has served a significant time in jail. 496
days and any time awaiting transport. We would ask this
Court to also order. This case has been pending for quite
some time as the Court is aware. There were three
originally indicted victims in this case. We have lost
contact with the victim in regards to the later counts in
six, seven, eight and nine despite multiple attempts to
contact her. Uh, however, we have been in contact with
the other two uh, remaining minor victims and their
guardians and their parents and they are in accord with
this agreement. Uh, and so I would ask this Court to adopt
the plea agreement after going through the Criminal Rule
11 soliloquy and we would like to waive PSI and proceed
directly to sentencing today.
COUNSEL: … With respect to the joint sentencing
12
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recommendation of eight years my client understands that
it is an indeterminate sentencing due to the Reagan Tokes
law and that there is a presumption that the minimum
sentence would be eight years provided he does not have
problems in prison. Just for his clarification and for
the Court’s as well. We concur with the jail day credit.
496. I have prepared the form for the Tier III sex offender
registration. … and further we have no objection to
the amendments both in the charge as well as the date range
with respect to count one.
The trial court then addressed appellant:
TRIAL COURT: So I just want to go over with you uh, it’s
the same section of the statute in both cases now involving
two different alleged victims. Count one is an alleged
victim involving ZA and the date range is also being
amended from the original indictment on that case. The
date range on that plea is now, the allegation is that
these, this offense took place sometime between uh, July
11th of 2019 to March 31st of 2020. Uh, with the same
alleged victim initials ZA. And the allegation is that
during that date range in Athens County … that you did
engage in sexual conduct with this person by purposely
compelling her or submitting by force or threat of force.
So my question for you is, just do you understand that
charge?
DEFENDANT: Yes your honor I do.
TRIAL COURT: Okay. Very good. And count five is the same
allegation, same section of the statute. Also a felony of
the first degree. That allegation involves a date range
of April 1 of 2020 to April 30 of 2020 and the alleged
victim in this case is a person with the initials A.H. And
again the allegation is that during that date range, in
Athens County, that you purposely compelled her to submit
by force or threat of force and that’s also a count of
rape. A felony of the first degree. You understand that
charge?
DEFENDANT: Yes your honor I do.
13
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With respect to the Alford plea, the trial court stated:
TRIAL COURT: Okay. Now let’s talk a little bit about the
Alford Plea that’s being proposed here today. So typically
in a guilty plea a person is … admitting that yes they
committed the offense being alleged by the State and that
they are … admitting that the legal finding of guilt
is appropriate. An Alford Plea works a little differently.
So that would be, what you would be doing, if I were to
allow you to move forward on this plea today. Would be
that you are still maintaining your innocence essentially
against the actual charge itself but that you are
acknowledging that if we had a jury trial in this case or
even if it was a bench trial that the State would likely,
be able to put forth sufficient evidence to convince either
a judge or a jury beyond a reasonable doubt that you would
be guilty of that offense. Do you understand that?
DEFENDANT: Yes your honor I do.
TRIAL JUDGE: And have you had a good chance to talk to your
lawyer about what a [sic.] Alford plea means?
DEFENDANT: Yes your honor I did.
TRIAL JUDGE: And did he answer all your questions about
that?
DEFENDANT: Yes sir.
{¶20} The trial court also asked general Crim.R. 11 questions
about whether appellant was under the influence of drugs or
alcohol, if threats had been made against him, if anyone offered
anything of value in exchange for his plea, if anyone coerced him,
whether his attorney answered all questions, and whether he was
satisfied with his legal representation. As noted above, the trial
court then read from the indictment and explained the purpose of
14
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the Alford plea. The trial court then discussed maximum penalties,
postrelease control, right to a trial by jury, right to an
attorney, and right to confront witnesses. At that point, the
court accepted appellant’s plea and proceeded to sentencing.
{¶21} The information the trial court had before it to
determine whether the record contained “strong evidence of actual
guilt,” Alford at 37, reveals that the arrest warrant affidavit
states: “Victim, A.H. … reported that on the weekend of April
17, 2020, at the Ohio University Inn, [appellant] started touching
her and removing her shirt and bra, shorts and underwear and
engaged in oral sex with her.”
{¶22} The initial indictment as it relates to counts one and
five stated:
Count One Rape - F1
R.C. 2907.02(A)(1)(b)
Date of Offense On or about July 10, 2017 to May 31, 2020
On or about the date of the offense set forth above, in
the County of Athens, unlawfully did engage in sexual
conduct with Z.A. 7/10/2009 who was not the spouse of the
offender, whose age at the time of the said sexual conduct
was less than thirteen years of age, to wit: 8 years old,
whether or not the offender knew the age of Z.A. 7/10/2009.
FURTHERMORE, the victim was less than ten years of age.
…
Count Five Rape - F1
R.C. 2907.02(A)(2)
[Cite as State v. Cunningham, 2023-Ohio-4305.]
Date of Offense On or about April 1, 2020 to April 30, 2020
On or about the date of the offense set forth above, in
the County of Athens, unlawfully did engage in sexual
conduct with A.H. 6/15/2006 when [appellant] purposely
compelled her to submit by force or threat of force.
The Bill of Particulars also added the location of the offense to
Count 1 (767 Hudson Ave) and Count 5 (OU Inn) “in the hotel room he
was staying in for work.”
{¶23} In Hughes, supra,
2021-Ohio-111, this court recently held
that the trial court failed to engage in the required heightened
Alford inquiry when the trial court (1) did not ask the state to
provide the basic facts surrounding the indictment, (2) discovery
was not made part of the record, (3) the record contained no bill
of particulars upon which the trial court might discern the
strength of the state’s charges, and (4) the record contained no
witness statements or investigative reports. Id. at ¶ 12, 15. In
fact, in Hughes the court asked no questions whatsoever concerning
facts that surrounded the indictment.
{¶24} In State v. Bolin, 3d Dist. Hardin No. 6-22-02, 2022-
Ohio-3777, the court upheld an Alford plea when the trial court
discussed the Crim.R. 11 requirements and “what an Alford plea
was,” with the defendant, the state presented facts regarding the
charges and stated it “had proof to prove the facts alleged beyond
[Cite as State v. Cunningham, 2023-Ohio-4305.]
a reasonable doubt,” defense counsel stated he received “full
discovery from the State of Ohio in which we have been able to
review, all of the potential evidence that the State of Ohio would
present at a jury trial if we were to go forward,” and the trial
court inquired of defense counsel whether, in light of the
discovery he had received, he believed this guilty plea was in the
defendant’s best interest and whether it was “supported by a strong
factual basis of truth.” Id. at ¶ 7-8.
{¶25} Similarly, the Twelfth District upheld an Alford plea in
State v. Satterwhite, 12th Dist. Warren No. CA2020-09-063, 2021-
Ohio-2878, when the trial court had access to the defendant’s
interview, the prosecutor read into the record anticipated evidence
that would be introduced at trial, and a detective testified
concerning how police identified the defendant as the suspect. Id.
at ¶ 27- 28.
{¶26} Appellant contends that Hughes requires reversal. We,
however, disagree. In Hughes, we concluded that the record did not
include a presentation of the basic facts or circumstances
surrounding the indictment and the trial court did not ask the
state to provide the basic facts surrounding the indictment, but
rather immediately proceeded with sentencing. Moreover, the record
in Hughes contained no bill of particulars, no witness statements
[Cite as State v. Cunningham, 2023-Ohio-4305.]
or investigative reports, and no recitation of basic facts to
satisfy Alford. Hughes at ¶ 15. Thus, Hughes’ plea did not meet
the heightened Alford standards because the record was “ ‘devoid of
a basic factual framework against which the trial court could
weigh’ ” appellant’s claims of innocence against his willingness to
waive trial. Hughes at ¶ 15, quoting State v. Casale,
34 Ohio
App.3d 339, 340,
518 N.E.2d 579 (8th Dist.1986).
{¶27} In contrast, in the case at bar the record includes the
initial indictment, which included sufficient detail about the
offenses, an arrest warrant affidavit that contained additional
details regarding the specific actions that constituted the
offenses, and the bill of particulars that added further details,
such as the location of each offense. Moreover, the trial court
asked appellant if he had the opportunity to speak with his counsel
about “what a [sic] Alford plea means,” to which appellant replied,
“yes, your honor I did.” The court asked if counsel answered all
of appellant’s questions, and appellant replied, “Yes sir.” Thus,
unlike Hughes, the case sub judice contains strong evidence of
guilt. See also Krieg, 9th Dist. Lorain No. 04CA008442, 2004-Ohio-
5174, ¶ 16 (“a bill of particulars as requested by defense counsel
and answers to discovery” formed a sufficient factual basis for the
trial court to accept Alford plea); State v. Remines, 9th Dist.
Lorain No. 97CA006700, 1988 WL 103350, *2 (Feb.25, 1998)(concluding
[Cite as State v. Cunningham,
2023-Ohio-4305.]
that the factual basis for an Alford plea presented where record
included bill of particulars); Katz, Martin, & Macke, Baldwin’s
Ohio Practice Criminal Law, Section 43.15 (3d Ed.,
Nov.2019)(discussing the factual basis requirement for an Alford
plea, “Ascertaining that there is a factual basis for the plea does
not necessarily require the taking of testimony. Determining a
factual basis may be accomplished by … deriving information
from a pre-sentence report” among other methods).
{¶28} Therefore, we believe that the trial court record
affirmatively establishes that appellant’s plea was not the result
of coercion, deception or intimidation. Here, counsel was present
at the time of the plea, counsel’s advice was competent, the plea
made with the understanding of the nature of the charges, and
defendant was motivated either by a desire to seek a lesser penalty
or a fear of the consequences of a jury trial, or both. In fact,
in the case at bar the state dismissed eight counts and the parties
also reached a joint sentencing recommendation. Moreover, at no
time did appellant express to the court any reservation whatsoever
concerning his plea, his counsel, or the joint sentencing
recommendation. Thus, appellant’s plea was voluntarily and
intelligently made. Piacella, 27 Ohio St.2d 92,
271 N.E.2d 852
(1971), paragraph one of the syllabus.
[Cite as State v. Cunningham,
2023-Ohio-4305.]
{¶29} Finally, appellant asserts that his plea was not knowing,
voluntary, and intelligent because the trial court failed to
determine his competency. Appellant filed a motion to determine
competency on March 5, 2021 when his first attorney represented
him. This filing alleged that appellant informed a health care
agency that he had a “history of mental illness, traumatic brain
injury, and has medical problems including Parkinson’s disease
which have affected his ability to communicate.” The trial court
ordered a competency evaluation.
{¶30} Later, appellant’s first trial counsel sought to withdraw
and indicated that four defense witnesses “who claimed to be health
care surrogates with a power of attorney to counsel and provide
mental health advice, medical advice and to advocate for
[appellant], … were taken into custody and charged with crimes
… and now await trial.” The state’s response to counsel’s
motion to withdraw indicated that the employees of the “health care
agency” had been indicted for criminal activity that occurred
during the pendency of appellant’s case and through their
employment with the health care agency. Further, the state
explained that appellant “has filed a frivolous motion for
competency based on fraudulent information contained in an email
from defendants trying to get Defendant ‘out on medical.’ ”
[Cite as State v. Cunningham, 2023-Ohio-4305.]
{¶31} As appellee points out, at the June 30, 2021 final
pretrial conference, the trial court informed the parties it had
received the competency evaluation and shared it with counsel, but
the court also received a motion from appellant’s first trial
counsel to withdraw. After the court ascertained appellant’s
intention to seek a public defender, the court appointed new
counsel on July 6, 2021. Appellee points out that new counsel met
appellant several times prior to trial and did not renew
appellant’s initial motion for competency. Further, appellant did
not enter his Alford plea until six months later, which gave new
counsel adequate time to pursue the competency issue.
{¶32} In Dusky v. United States, 362 U.S. 402,
80 S.Ct. 788,
4
L.Ed.2d 824 (1960), the United States Supreme Court defined the
test for competence to stand trial as 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.’ ” The Ohio Supreme Court has held that a person who
“ ‘lacks the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in
preparing his defense,’ ” may not stand trial. State v. Skatzes,
104 Ohio St.3d 195,
2004-Ohio-6391,
819 N.E.2d 215, ¶ 155.
[Cite as State v. Cunningham,
2023-Ohio-4305.]
{¶33} Appellee argues that the case at bar is similar to State
v. Bock, 28 Ohio St.3d 108,
502 N.E.2d 1016 (1986). In Bock,
counsel filed a request for a competency hearing, alleged that the
defendant had been hospitalized for drug-related problems, and “the
record further reveals testimony by Bock of his emotional distress
and comments about suicide.” The court, however, concluded that
this alone “is not sufficient to indicate a lack of competency.”
Bock at 110. More specifically, the court explained:
Defense counsel, after the original motion for a hearing,
failed ever again to mention the defendant’s competency
until the time for appeal. The record reveals no adequate
indication of any behavior on the part of the defendant
which might indicate incompetency. Nor is there any expert
or lay opinion in the record that defendant was actually
incompetent.
Bock at 111.
{¶34} We similarly conclude that in the case at bar, after
appellant’s first trial counsel requested a competency evaluation
and the trial court granted the motion, the issue of appellant’s
competency faded into the background of these proceedings. We
further point out that neither appellant or his counsel raised this
issue or engaged in conduct that could cause the court to question
or have any concern about appellant’s competency. This, coupled
with the fact that the initial motion relied on statements made by
staff persons later indicted for forgery, tampering with records,
[Cite as State v. Cunningham, 2023-Ohio-4305.]
telecommunications fraud and identity fraud, leads us to conclude
that the trial court’s failure to hold a competency hearing
constitutes, at most, harmless error. Bock, syllabus paragraph
one.
{¶35} In State v. Were, 94 Ohio St.3d 173,
2002-Ohio-481,
761
N.E.2d 591, the Supreme Court of Ohio concluded that a defendant is
entitled to a pretrial competency hearing and the failure to hold
that hearing is error and requires reversal. However, Were is
distinguishable from the case at bar because in Were, counsel
“repeatedly requested” a competency hearing. The court noted that,
although the trial court ordered a competency evaluation, the
requested hearing was not held or waived, but rather the trial
court issued an entry that determined competency without a hearing.
Id. at 174. Counsel raised the issue of Were’s competency on
numerous occasions - through a motion before trial, after opening
arguments, during trial, and before mitigation. Were also refused
to speak with his defense team and filed numerous pro se motions to
dismiss his attorneys in which he accused them of threatening his
life and conspiring with the state. Moreover, Were’s signs of
paranoia, and his refusal to cooperate, led his attorneys to file
two motions to withdraw as counsel. Were at 176. Thus, the Were
court found the record “replete with suggestions of [the
defendant’s] incompetency.” Id. at 175. Therefore, the trial
[Cite as State v. Cunningham,
2023-Ohio-4305.]
court’s failure to hold a competency hearing was not harmless. Id.
at 177,
761 N.E.2d 591.
{¶36} “The right to a hearing on the issue of competency rises
to the level of a constitutional guarantee where the record
contains ‘sufficient indicia of incompetence,’ such that an inquiry
into the defendant’s competency is necessary to ensure the
defendant’s right to a fair trial.” State v. Berry, 72 Ohio St.3d
354, 359,
650 N.E.2d 433, 438 (1995), quoting Drope v. Missouri,
420 U.S. 162, 175,
95 S.Ct. 896, 905,
43 L.Ed.2d 103, 115. Thus,
the Were court held that “[a]n evidentiary competency hearing is
constitutionally required whenever there are sufficient indicia of
incompetency to call into doubt defendant’s competency to stand
trial.” Were,
94 Ohio St.3d 173, 175, citing Berry,
72 Ohio St.3d
354,
650 N.E.2d 433. But see State v. Flanagan,
2017-Ohio-955,
86
N.E.3d 681 (8th Dist.)(reversal required when competency raised
prior to trial, court failed to hold hearing, record reflects no
formal finding or adoption of competency, no stipulation to
competency or results of evaluation); State v. Dowdy, 8th Dist.
Cuyahoga No. 96642,
2012-Ohio-2382 (because psychiatric evaluation
not made part of record and not stipulated, court unable to glean
sufficient information to determine court’s failure to conduct the
hearing is harmless).
[Cite as State v. Cunningham,
2023-Ohio-4305.]
{¶37} The Supreme Court of Ohio recently reaffirmed the Bock
standard and noted that, whether a trial court’s failure to hold a
competency hearing constitutes reversible error is to be determined
on a case-by-case basis. State v. Hough, 169 Ohio St.3d 769, 2022-
Ohio-4436,
207 N.E.3d 788, citing Bock,
28 Ohio St.3d at 109-110,
502 N.E.2d 1016. The Hough court reversed the convictions and
pointed to (1) few interactions with the trial court, (2) a
discounting of the defendant’s mental health diagnoses, (3) the
defendant not oriented to time and held several delusional beliefs,
such as the belief that others could control his thoughts or force
thoughts into his head and that people were trying to follow him
and cause him problems,(4) defendant suffered auditory
hallucinations, (5) that cognitive tests revealed a low IQ, and low
verbal concept formation and verbal and nonverbal reasoning, and
(6) counsel raised concerns about Hough’s competency at sentencing.
Id. at ¶ 32-35.
{¶38} In State v. Jones, 4th Dist. Gallia No. 19CA9, 2020-Ohio-
7037, the defendant filed a pretrial motion to determine competency
that the trial court denied without a hearing. After the defendant
pleaded guilty to murder, he later requested to withdraw his plea
and alleged he lacked competency to plead guilty. The trial court
denied the motion and we affirmed. In Jones, we noted that we have
[Cite as State v. Cunningham, 2023-Ohio-4305.]
recognized some factors that would require a court to sua sponte
order a competency evaluation including “(1) doubts expressed by
counsel as to the defendant’s competence, (2) evidence of
irrational behavior, (3) the defendant’s demeanor at trial, and (4)
prior medical opinion relating to competence to stand trial.” Id.
at ¶ 20, citing State v. Barnhart, 4th Dist. Washington No. 96CA32,
1997 WL 600045, at *2 (Sept. 24, 1997). We summarized the
interplay between Bock and Were:
Together Bock and Were effectively instruct that if a
pretrial request for a competency hearing is made, it is
mandatory for a trial court to hold a competency hearing
consistent with R.C. 2945.37. But, if a court fails to
hold a competency hearing pursuant to a pretrial request
and the record is replete with indicia of incompetency, it
is a reversible error under Were. Alternatively, if the
record does not reveal indicia of incompetency, then the
failure to hold a hearing is harmless error under Bock.
Jones at ¶ 25. We concluded that counsel’s actions were not those
of an attorney who believed his client incompetent, see Bock at 111
(counsel’s failure to continue to pursue competency evaluation is
indicia that Appellant is not incompetent); see also State v.
Moore, 8th Dist. Cuyahoga No.
2020-Ohio-3459, ¶ 35 (competency
hearing required only when issue raised and maintained.) Moreover,
we pointed out, as in the case at bar, that the trial court engaged
in a lengthy colloquy with Jones during the plea hearing and the
record did not indicate that appellant acted “irrationally” or his
[Cite as State v. Cunningham,
2023-Ohio-4305.]
“demeanor” unusual, factors we have recognized as possible
competency concerns. Id. at ¶ 29, citing Barnhart, 4th Dist.
Washington No. 96CA32,
1997 WL 600045, at *2.
{¶39} Therefore, because the record does not reveal any indicia
of incompetency, we conclude that the trial court’s failure to hold
a hearing was harmless error. Furthermore, appellant’s plea
represented a voluntary and intelligent choice among the
alternative courses of action open to the defendant, Alford, 400
U.S. at 43. Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶40} In his second assignment of error, appellant asserts that
the trial court failed to notify him at the hearing of his Reagan
Tokes Act R.C. 2929.19(B)(2)(c) requirements. In State v.
Bontrager, 2022-Ohio-1367,
188 N.E.3d 607 (4th Dist.), we concluded
that the Reagan Tokes Law does not violate due process. Id. at ¶
48. However, appellant contends that the trial court failed to
inform him of the mandatory R.C. 2929.19(B)(2)(c) notifications.
The state concedes this point and requests this court remand the
case to the trial court for resentencing. We agree. See State v.
[Cite as State v. Cunningham,
2023-Ohio-4305.]
Massie, 2d Dist. Clark No. 2020-CA-50,
2021-Ohio-3376 (when
considering language in sections R.C. 2929.19(B)(2)(a) and
(B)(2)(b) together, it becomes clear that the phrase “notify the
offender” in (B)(2)(a) necessarily refers to notice that should be
given at the sentencing hearing, since section (B)(2)(b) instructs
the trial court to include the same information in the sentencing
entry.); State v. Hodgkins, 12th Dist. Warren No. CA2020-08-048,
2021-Ohio-1353 (trial court failed to inform appellant of mandatory
notifications set forth in R.C. 2929.19(B)(2)(c) at the sentencing
hearing, thus, failed to comply with the statute, and resentencing
required).
{¶41} Accordingly, based on the foregoing reasons, we sustain
appellant’s second assignment of error and remand the case to the
trial court for the limited purpose of resentencing.
III.
{¶42} For the foregoing reasons, we overrule appellant’s first
assignment of error and sustain appellant’s second assignment of
error. Consequently, we affirm the trial court’s judgment in part,
reverse it in part, and remand the matter for further proceedings
consistent with this opinion.
[Cite as State v. Cunningham, 2023-Ohio-4305.]
JUDGMENT AFFIRMED IN PART, REVERSED
IN PART, AND CAUSE REMANDED FOR
FURTHER PROCEEDINGS.
ATHENS, 23CA2
29
JUDGMENT ENTRY
It is ordered that the judgment be affirmed in part, reversed
in part and cause remanded for further proceedings consistent with
this opinion. Appellee shall pay the 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 Athens County Common Pleas Court to carry this
judgment into execution.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
