State v. Howard

[Cite as State v. Howard, 2022-Ohio-2959.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111213
v. :
RAYSEAN N. HOWARD, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 25, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-646565-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellee.
Raysean N. Howard, Jr., pro se.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Raysean Howard appeals from his convictions
of murder with a three-year firearm specification and two counts of attempted
murder. Specifically, Howard claims his convictions should be reversed because he
was not present at a hearing to determine his competency. Because the record does
not support a finding that would indicate Howard was incompetent when his
counsel waived his presence on the scheduled hearing date and stipulated to a
psychiatric report, Howard cannot show that he was prejudiced by the waiver or that
the outcome of the proceeding would likely have been different, we affirm Howard’s
convictions.
I. FACTS AND PROCEDURAL HISTORY
On December 16, 2019, Howard was indicted for several counts of
aggravated murder, murder, felonious assault, attempted murder, improper
discharge of a firearm at or into a habitation, discharge of a firearm on or near
prohibited premises, and improperly handling firearms in a motor vehicle.
On February 19, 2020, Howard’s counsel filed a motion to have
Howard evaluated by the Cuyahoga County Court of Common Pleas Psychiatric
Clinic for a determination of Howard’s IQ and competency. On February 21, 2020,
the trial court granted the motion and referred Howard to the court psychiatric
clinic.
On March 19, 2020, in response to the Covid-19 epidemic, the trial
court ordered that the March 26, 2020 pretrial be conducted by telephone
conference. On March 26, 2020 the trial court conducted a pretrial conference in
which it set a further telephonic conference for April 28, 2020. On April 28, 2020,
the trial court conducted a pretrial conference, noting that defendant’s presence was
waived. At this pretrial conference, the parties waived a hearing on defendant’s
competency and stipulated to the court psychiatric clinic report that recommended
a further inpatient competency evaluation be conducted. The trial court ordered
Howard to Northcoast Behavioral Healthcare (“Northcoast”) for an inpatient
evaluation. Howard was evaluated at Northcoast for a period of six days in July
2020. A report regarding Howard’s competency was prepared in which he was
diagnosed with malingering and cannabis use disorder, mild. The report noted that
Howard was “feigning psychotic symptoms for the secondary gain of avoiding
criminal persecution.”
On September 22, 2020, the trial court set a competency hearing for
October 20, 2020, to be conducted via video conferencing. On October 20, 2020,
the trial court entered upon its journal that Howard’s presence was waived. The trial
court further noted that the parties stipulated Howard was competent to proceed to
trial and then stated, “based upon review of reports and parties’ stipulation, court
finds defendant competent to proceed.”
On October 21, 2021, Howard entered into a plea agreement to plead
guilty to one count of murder with a three-year firearm specification and to two
counts of attempted murder. In accepting Howard’s plea, the trial court conducted
a colloquy with him, explained his constitutional rights that he would be waiving
and determined that he understood the nature of the charges against him as well as
finding that he entered his pleas knowingly, voluntarily, and intelligently. Howard
acknowledged that he was satisfied with the representation he received from
counsel. Following the acceptance of his guilty pleas, the trial court sentenced
Howard to an aggregate term of incarceration of 23 years to life.
II. LAW AND ARGUMENT
A. Assignment of error and issues presented
Howard raises one assignment of error that reads:
Howard’s U.S. Constitutional Right to Due Process was violated when
he was not present at his competency hearing without a valid waiver
summing up to his U.S. Constitutional right to counsel being violated.
Howard alleges that his right to due process was violated where he
was not present at the hearing to determine his competency. He asserts that he did
not personally waive his right to present at the competency hearing and that, had he
been present, he would have objected to counsel’s stipulation to the psychiatric
report and the trial court’s finding of competency. Howard argues that because he
was not present for the scheduled competency hearing, the trial court was deprived
of the ability to observe him and personally determine whether he was capable of
understanding the proceedings against him or assist in his defense. In addition to
arguing that his due process rights were violated, Howard also argues that his
counsel provided ineffective assistance by waiving his presence and stipulating to
the psychiatric report.
The state argues Howard’s counsel properly waived his presence for
the pretrial hearing at which counsel stipulated to the psychiatric report. It further
asserts that because Howard has not presented evidence to rebut the presumption
of competency, he cannot show that his counsel was ineffective either by waiving
Howard’s presence or stipulating to the psychiatric report.
B. Howard was not denied due process of law nor was he denied effective
assistance of counsel
Howard argues that his right to due process was violated where he
was not present at the scheduled competency hearing. We review claims of due
process violations de novo. In re A.R., 8th Dist. Cuyahoga Nos. 104869, 104870,
104871, 104872, 104873, 104875, and 104876, 2017-Ohio-8058, ¶ 15. A criminal
defendant has a right to be present at all critical stages of a criminal proceeding.
State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 100.
There is no dispute between the parties that a hearing to determine
competency would be considered a critical stage of the criminal proceedings.
“However, ‘the presence of a defendant is a condition of due process to the extent
that a fair and just hearing would be thwarted by his absence, and to that extent
only.’ (Emphasis added.)” Id. at ¶ 100, quoting Snyder v. Massachusetts, 291 U.S.
97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds by
Malloy v. Hogan, 378 U.S. 1, 17, 84 S.Ct. 1489, 12 L.Ed 2d 653 (1964).
For Howard’s right to be present to be violated, the “‘record must
affirmatively indicate the absence of a defendant or his counsel during a particular
stage of the trial.’’’ Id. at ¶ 105, quoting State v. Clark, 38 Ohio St.3d 252, 258, 527
N.E.2d 844 (1988). The trial court’s October 20, 2020 journal entry indicates that
Howard’s presence was waived, and as such, he cannot claim his right to be present
was violated. Howard contests that because he did not expressly waive his presence,
his right to be present in court was violated. However, counsel may waive a client’s
presence even without an express waiver from the defendant appearing in the
record. State v. Green, 90 Ohio St.3d 352, 372, 2000-Ohio-182, 738 N.E.2d 1208,
citing United States v. Gagnon, 470 U.S. 522, 528, 105 S.Ct. 1482, 84 L.Ed.2d 486(1985); United States v. Gallego, 191 F.3d 156, 171-172 (2d Cir.1999); Polizzi v.
United States, 926 F.2d 1311, 1322-132 (2d Cir.1999); and State v. Hill, 73 Ohio St.3d
433, 444, 653 N.E.2d 271 (1995).
Even were we to find the waiver of Howard’s presence improper,
Howard would still need to demonstrate that he was prejudiced by the waiver, e.g.,
that he did not receive a full and just hearing on the issue of his competency. There
was no evidence before the court other than the psychiatric reports regarding
competency; those did not indicate Howard incompetent. Howard’s counsel
stipulated to the psychiatric report, which obviated the necessity of holding a formal
hearing. State v. Dienes, 8th Dist. Cuyahoga No. 97578, 2012-Ohio-4588, ¶ 9, citing
State v. Smith, 8th Dist. Cuyahoga No. 95505, 2011-Ohio-2400, ¶ 6. Accordingly,
we cannot say on this record that Howard’s right to be present was violated to the
extent that “a fair and just hearing was thwarted” in light of the record, the
stipulation made by counsel, and where no hearing took place. See Hale at ¶ 100.
Howard asserts that counsel’s waiver of his presence and stipulation
to the psychiatric report constituted ineffective assistance. We review ineffective
assistance of counsel claims made on direct appeal de novo. State v. Gondor, 112
Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 53. To show he received
ineffective assistance of counsel Howard must 1) establish that counsel’s
performance fell below an objective standard of reasonable representation, and 2)
show that he was prejudiced by the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A criminal
defendant may establish prejudice if there exists a reasonable probability the result
of the trial would have been different. State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraph three of the syllabus.
Howard contends that had he been present at the scheduled
competency hearing, he would have objected to counsel’s stipulation, but offers no
evidence that indicates he was incompetent at the time of the scheduled hearing to
support the objection. Howard further argues that he could have been questioned
as to his competency by the trial court at that time. In contrast to this argument, the
record does not support finding that the trial court would have found Howard to be
incompetent to stand trial; rather, it suggests the opposite. The psychiatric report
noted Howard was malingering. Howard later appeared before the trial court for a
plea hearing at which time the trial court conducted a colloquy with him. Howard
demonstrated that he understood the nature of the charges against him, understood
the penalties he faced, and entered his plea knowingly, intelligently, and voluntarily.
Without further indicia of incompetency in the record, we do not find
that counsel’s waiver of Howard’s presence or stipulation to the psychiatric report
fall below an objective standard of reasonableness or that the result of the
proceeding would likely be different. See State v. Hardley, 8th Dist. Cuyahoga
Nos. 88456 and 88457, 2007-Ohio-3530, ¶ 21 (Counsel did not provide ineffective
assistance of counsel by stipulating to competency report where record did not
support a finding defendant would be found incompetent after four evaluations
found defendant competent.).
The sole assignment of error is overruled.
III. CONCLUSION
Counsel waived Howard’s presence at a scheduled hearing and
stipulated to a psychiatric report that did not find Howard incompetent to stand
trial. Howard has not shown evidence of his incompetence at the time his presence
was waived and counsel stipulated to the psychiatric report. The record does not
show he suffered prejudice by counsel’s waiver of his presence, nor has he shown
that the outcome of the proceedings was likely to be different had he been present
to object to counsel’s stipulation to the psychiatric report. Accordingly, Howard’s
assignment of error is overruled and his convictions are affirmed.
Judgment affirmed.
It is ordered that appellee recover of appellant 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
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
LISA B. FORBES, J., CONCUR