State v. McConnell , 2021 Ohio 41 ( 2021 )

[Cite as State v. McConnell, 2021-Ohio-41.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 20-CA-00005
:
JACK A. MCCONNELL :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of
Common Pleas, Case No. 19-CR-0027
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 8, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOSEPH A. FLAUTT JAMES S. SWEENEY
PERRY COUNTY PROSECUTOR 285 South Liberty St.
111 North High Street Powell, OH 43065
P.O. Box 569
New Lexington, OH 43764-0569
Perry County, Case No. 20-CA-00005 2
Delaney, J.
{¶1} Defendant-Appellant Jack A. McConnell appeals the February 3, 2020
sentencing judgment entry of the Perry County Court of Common Pleas. Plaintiff-Appellee
is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 20, 2019, Defendant-Appellant Jack A. McConnell was driving
on State Route 204 when his car left the roadway. He exited his car with a handgun and
discharged it towards a vehicle driving on the road, occupied by four women. McConnell
was arrested and indicted by the Perry County Grand Jury on March 27, 2019 for
discharge of a firearm on or near a prohibited premises, a third-degree felony in violation
of R.C. 2923.162(A)(3) and (C)(2); having weapons while under disability, a third-degree
felony in violation of R.C. 2923.13(A)(3); and felonious assault with a firearm specification,
a second-degree felony in violation of R.C. 2903.11(A)(2) and (D)(1)(a) and R.C.
2941.145. McConnell entered a plea of not guilty to the charges.
First Evaluation
{¶3} McConnell filed a “Motion for Evaluation of Current Competency to Stand
Trial and Sanity at the Time of the Alleged Offense” on May 22, 2019. He requested an
expert evaluation at the public expense. He simultaneously filed a “Written Plea of Not
Guilty by Reason of Insanity.”
{¶4} On May 23, 2019, the trial court granted the motion for evaluation. It ordered
the evaluation of McConnell’s mental competence and sanity to be completed by Forensic
Diagnostic Center of District Nine. McConnell did not object to Forensic Diagnostic Center
completing the evaluations.
Perry County, Case No. 20-CA-00005 3
{¶5} Reports of the two evaluations conducted by the Forensic Diagnostic
Center of District Nine were filed with the trial court on June 28, 2019.
{¶6} On July 2, 2019, the trial court held a hearing regarding the evaluations.
Zach Meranda, trial counsel’s partner, appeared at the hearing to represent McConnell
because trial counsel was unable to attend the hearing. The trial court asked the parties
if the attorneys had an opportunity to review the evaluations, to which both responded
they had. (T. 3). The trial court asked:
THE COURT: Okay. And Mr. Meranda, did you wish to stipulate to either
one of those or --
MR. MERANDA: Your Honor, I’ve had an opportunity to review both the
reports. At this time we would stipulate to their findings, and – that’s
contained in both reports at this time.
(T. 3).
{¶7} The trial court found McConnell was competent to stand trial. (T. 3). It asked
if McConnell was going to withdraw his plea of not guilty by reason of insanity. Meranda
stated he would discuss it with McConnell’s trial counsel so trial counsel could discuss it
with the court. (T. 4).
{¶8} The trial court journalized its findings via journal entry filed July 3, 2019. The
entry stated,
The parties stipulated to the evaluation. It is Dr. Adkins’ professional
opinion, with a reasonable degree of psychological certainty, that the
Defendant is currently capable of understanding the legal proceedings
against him and capable of assisting counsel in his own defense. * * * In
Perry County, Case No. 20-CA-00005 4
addition, the parties stipulated to Dr. Adkins’ report of the Defendant’s
mental state at the time of the offense also filed on June 28, 2019.
(Judgment Entry, July 3, 2019).
Second Evaluation
{¶9} On July 25, 2019, McConnell filed a second motion for evaluation at public
expense of his competency to stand trial and sanity at the time of the alleged offense. He
also filed a written plea of not guilty by reason of insanity. The trial court held a hearing
on the motion on August 1, 2019. Trial counsel stated that based on his conversations
with his client and McConnell’s family, he was requesting a second opinion from Dr.
Daniel Davis regarding McConnell’s competency to stand trial and sanity at the time of
the alleged offense. (T. 4). Trial counsel stated Dr. Davis used a different analysis method
than the Forensic Diagnostic Center. (T. 6). The trial court did not understand why
McConnell would stipulate to the first evaluation. (T. 4). Trial counsel stated:
MR. ITAYIM: The results of the first evaluation, we are – we’ve stipulated
to. But we can request a second opinion even if we have agreed – even if
we’ve agreed to stipulate to that document.
THE COURT: And you’ve agreed that he’s competent?
MR. ITAYIM: We – the – the Court deemed him competent. We just
stipulated to the document.
(T. 4-5).
{¶10} The trial court issued its judgment on August 19, 2019. It granted the motion
in part to allow a second sanity evaluation completed by Dr. Daniel Davis. It denied
Perry County, Case No. 20-CA-00005 5
McConnell’s request for a second competency evaluation completed at the public
expense.
{¶11} The evaluation was filed on October 29, 2019.
Change of Plea and Sentencing
{¶12} On November 15, 2019, the trial court held a change of plea hearing where
McConnell entered a plea of guilty to the charge of felonious assault with a firearm
specification. The State dismissed the remaining charges. The trial court conducted a
plea colloquy and accepted McConnell’s change of plea but ordered a presentence
investigation before sentencing. (Plea of Guilty, Nov. 18, 2019).
{¶13} McConnell appeared for a sentencing hearing on January 27, 2020. Via
sentencing entry filed February 3, 2020, the trial court sentenced McConnell to three
years in prison for felonious assault and three years in prison for the firearm specification,
to be served consecutively.
{¶14} It is from this sentencing entry that McConnell now appeals.
ASSIGNMENTS OF ERROR
{¶15} McConnell raises one Assignment of Error:
{¶16} “THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION FOR A SECOND COMPETENCY EVALUATION.”
ANALYSIS
{¶17} McConnell contends in his sole Assignment of Error that the trial court
abused its discretion when it denied his request for a second competency evaluation at
public expense. Based on the record before us, we disagree.
Perry County, Case No. 20-CA-00005 6
First Evaluation
{¶18} McConnell initially entered a plea of not guilty to the charges, but prior to
trial, he filed a written plea of not guilty by reason of insanity (“NGRI”) and argued he was
not competent to stand trial. Pursuant to R.C. 2945.37(B), “In a criminal action in a court
of common pleas, * * * the * * * defense may raise the issue of the defendant's competence
to stand trial. If the issue is raised before the trial has commenced, the court shall hold a
hearing on the issue as provided in this section.” After McConnell filed motions raising the
issue of his competence to stand trial and his NGRI plea, the trial court ordered an
evaluation pursuant to R.C. 2945.371(A):
If the issue of a defendant's competence to stand trial is raised or if a
defendant enters a plea of not guilty by reason of insanity, the court may
order one or more evaluations of the defendant's present mental condition
or, in the case of a plea of not guilty by reason of insanity, of the defendant's
mental condition at the time of the offense charged. An examiner shall
conduct the evaluation.
{¶19} After the evaluations were filed, the trial court held a competency hearing
on July 2, 2019. The standard for competence is set forth in R.C. 2945.37(G):
A defendant is presumed to be competent to stand trial. If, after a hearing,
the 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
Perry County, Case No. 20-CA-00005 7
defendant incompetent to stand trial and shall enter an order authorized by
section 2945.38 of the Revised Code.
State v. Russell, 5th Dist. Ashland No. 18-COA-021, 2019-Ohio-692, 2019 WL 982241, ¶
11.
{¶20} The definition for the legal insanity standard is set forth in R.C.
2901.01(A)(14). A person is “not guilty by reason of insanity” if the person proves 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. Notably, the 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. State v. Eick, 5th Dist. Stark No. 2010CA00267, 2011-Ohio-1498,
¶ 28 citing R.C. 2945.37.
{¶21} NGRI is an affirmative defense that must be proved by the defendant by a
preponderance of the evidence. State v. Eick, 5th Dist. Stark No. 2010CA00267, 2011-
Ohio-1498, ¶ 29 citing State v. Jennings, 10th Dist. Franklin No. 05AP–1051, 2006–Ohio–
3704, 2006 WL 2022235, ¶ 10; State v. Taylor, 98 Ohio St.3d 27, 2002–Ohio-7017, 781
N.E.2d 72, ¶ 64; R.C. 2901.05(A). With an insanity defense, the defendant must persuade
the trier of fact that at the time of the commission of the offense, he did not know the
wrongfulness of his acts, as a result of a severe mental disease or defect. Jennings at ¶
10. The proper standard for determining whether a defendant has successfully
demonstrated this defense and thus is entitled to an NGRI instruction is whether he has
“ ‘ “introduced sufficient evidence, which, if believed, would raise a question in the minds
of reasonable men concerning the existence of such issue.” ‘ “ State v. Thomas, 10th
Perry County, Case No. 20-CA-00005 8
Dist. Franklin No. 06AP–675, 2007–Ohio–1171, 2007 WL 778606, ¶ 11, quoting State v.
Tantarelli, 10th Dist. No. 94APA11–1618, 1995 WL 318730 (May 23, 1995), quoting State
v. Melchior, 56 Ohio St.2d 15, 20–21, 381 N.E.2d 195 (1978).
{¶22} At the competency hearing, the parties stipulated to the findings in the
evaluations. The trial court filed its judgment entry on July 3, 2019, finding McConnell was
competent to stand trial.
Second Evaluation
{¶23} Less than a month later, McConnell filed a second motion for evaluation to
determine his competency to stand trial and his mental condition at the time of the alleged
offense. After a hearing on the motion, the trial court granted the motion for a second
evaluation of McConnell’s mental condition at the time of the alleged offense but denied
the motion for a second evaluation of his competency to stand trial. McConnell’s
arguments on appeal solely regard the trial court’s denial of his request for a second
evaluation of his competency to stand trial.
{¶24} It is within the trial court’s discretion to order a second evaluation. R.C.
2945.371(A) states in pertinent part, “If the issue of a defendant’s competence to stand
trial is raised * * *, the court may order one or more evaluations of the defendant's present
mental condition.” (Emphasis added.) “* * * [T]he use of the word ‘may’ supports the
conclusion that a trial court is not required to order an evaluation of the defendant's mental
condition every time he raises the issue. Instead, the wording of the statute implies that
the ordering of an examination is a matter within the discretion of the trial court.” State v.
Bailey, 90 Ohio App.3d 58, 67, 627 N.E.2d 1078 (11th Dist.1992); State v. Eick, 5th Dist.
Stark No. 2010CA00267, 2011-Ohio-1498, ¶ 32. To find that the trial court abused its
Perry County, Case No. 20-CA-00005 9
discretion in denying Appellant's request for a competency re-evaluation, we must find
that the trial court's decision was unreasonable, arbitrary, or unconscionable and not
merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983).
{¶25} McConnell agues the trial court abused its discretion when it denied the
motion for a second competency evaluation. McConnell contends in his appeal that while
Mr. Meranda (who appeared at the hearing on trial counsel’s behalf) stipulated to the
findings of the competency evaluation, trial counsel believed that Mr. Meranda only
stipulated to the document. McConnell does not cite R.C. 2945.37(E) in support of his
argument, but pursuant to that statute, “[t]he prosecutor and defense counsel may submit
evidence on the issue of the defendant's competence to stand trial. A written report of the
evaluation of the defendant may be admitted into evidence at the hearing by stipulation,
but, if either the prosecution or defense objects to its admission, the report may be
admitted under sections 2317.36 to 2317.38 of the Revised Code or any other applicable
statute or rule.” We do not believe R.C. 2945.37(E) supports McConnell’s argument on
appeal based on the discussion of the competency evaluation at the first and second
hearings.
{¶26} At the first hearing, the trial court asked the parties if the attorneys had an
opportunity to review the evaluations, to which both responded they had. (T. 3). The trial
court next asked:
THE COURT: Okay. And Mr. Meranda, did you wish to stipulate to either
one of those or --
Perry County, Case No. 20-CA-00005 10
MR. MERANDA: Your Honor, I’ve had an opportunity to review both the
reports. At this time we would stipulate to their findings, and – that’s
contained in both reports at this time.
(T. 3). Mr. Meranda did not tell the trial court that he only stipulated to the admission of
the evaluation into evidence, nor did he object to the admission of the evaluation.
{¶27} Trial counsel stated in his motion for second evaluation that he was
requesting a second evaluation because his discussions and recent interactions with
McConnell caused him to question McConnell’s ability to appreciate the criminal nature
of actions he allegedly committed. (Motion, July 25, 2019). At the August 1, 2019 hearing
on the motion for the second competency evaluation, trial counsel stated that based on
his conversations with his client and McConnell’s family, he was requesting a second
opinion regarding McConnell’s competency to stand trial and sanity at the time of the
alleged offense. (T. 4). Trial counsel and the trial court had the following discussion about
the stipulation to the first competency evaluation:
THE COURT: So I’ve already found him competent to stand trial based
upon the stipulation.
MR. ITAYIM: I’m aware, Your Honor.
THE COURT: So you’re asking for another – another evaluation when he’s
already been found competent?
MR. ITAYIM: I’m – I’m requesting a second opinion, Your Honor, yes.
THE COURT: I don’t understand why you would stipulate to the first
evaluation.
Perry County, Case No. 20-CA-00005 11
MR. ITAYIM: The results of the first evaluation, we are – we’ve stipulated
to. But we can request a second opinion even if we have agreed – even if
we’ve agreed to stipulate to that document.
THE COURT: And you’ve agreed that he’s competent?
MR. ITAYIM: We – the – the Court deemed him competent. We just
stipulated to the document.
(T. 4-5). Trial counsel did not state they only stipulated to the admission of the document
into evidence pursuant to R.C. 2945.37(E).
{¶28} The trial court and trial counsel next discussed his basis for requesting a
second evaluation:
THE COURT: And you want that done at State expense. So what – what is
the – what is the reason for the request for a second evaluation?
MR. ITAYIM: It’s based on my conversations with my client.
(T. 5). Trial counsel questioned the evaluation done by the Forensic Diagnostic Center:
MR. ITAYIM: Is that they’re stating one thing and my conversations with my
client ongoing raises additional concerns, and that’s why I’m requesting the
second opinion. * * * The end result is what I’m – I’m questioning based on
their individual evaluations on their testing.
THE COURT: Have you talked to the doctors, questioned them about their
evaluation?
MR. ITAYIM: No, Your Honor. I’m just familiar with the Forensic Diagnostic
Center. * * * I’m familiar with Dr. – Dr. Davis from Columbus. * * * I found
him to be extremely – extremely competent. His reports are more thorough.
Perry County, Case No. 20-CA-00005 12
The analysis is different. And based on that, I think he’d be a more
appropriate individual to – to give a second opinion because he does do
different – different testing.
(T. 5-6).
{¶29} On this record, we cannot say the trial court abused its discretion in denying
a second competency evaluation of McConnell at public expense. When the trial court
ordered the Forensic Diagnostic Center to complete the evaluation of McConnell’s
competency, trial counsel did not object to the trial court’s selection of evaluator. At the
competency hearing, counsel for McConnell said they had reviewed the evaluations and
stipulated to the findings of McConnell’s competency to stand trial. It did not appear from
the record that counsel was stipulating to the admission of the evaluation as evidence
under R.C. 2945.37(E).
{¶30} Trial counsel provided two reasons to the trial court for a second
competency evaluation: (1) his discussions with his client and (2) he was familiar with the
Forensic Diagnostic Center. He did not clarify at the hearing whether his familiarity with
the Forensic Diagnostic Center was negative or positive. He differentiated between the
evaluation completed by the Forensic Diagnostic Center and an evaluation done by Dr.
Davis as “different and more thorough.” Trial counsel admittedly did not question the
evaluators at the Forensic Diagnostic Center as to their methodology or analysis. A
different analysis does not automatically indicate a different conclusion. We do not find
the trial court abused its discretion to deny a second competency evaluation based on
the record in this case.
{¶31} McConnell’s sole Assignment of Error is overruled.
Perry County, Case No. 20-CA-00005 13
CONCLUSION
{¶32} The judgment of the Perry County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Gwin, J., concur.