State v. McCain

S
[Cite as State v. McCain, 2021-Ohio-1605.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2020-CA-16
                                                  :
 v.                                               :   Trial Court Case Nos. 2017-CR-260,
                                                  :   2018-CR-232, 2020-CR-26,
 JERRY LEE MCCAIN                                 :   2020-CR-45
                                                  :
         Defendant-Appellant                      :   (Criminal Appeal from
                                                  :   Common Pleas Court)

                                             ...........

                                             OPINION

                              Rendered on the 7th day of May, 2021.

                                             ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

BRYAN HICKS, Atty. Reg. No. 0065022, P.O. Box 359, Lebanon, Ohio 45432
    Attorney for Defendant-Appellant

                                             .............




TUCKER, P.J.
                                                                                       -2-


       {¶ 1} Appellant, Jerry Lee McCain, appeals from his convictions in two cases in

the Champaign County Court of Common Pleas and the revocation of his community

control sanctions in two other cases based on those additional convictions. McCain

asserts that his guilty pleas were not knowing and intelligent. Since the record does not

support this contention, the trial court’s judgments will be affirmed.

                              Facts and Procedural History

       {¶ 2} While serving two community control sanction (CCS) sentences in

Champaign C.P. Nos. 2017-CR-260 and 2018-CR-232, McCain was indicted in two

additional cases. In Case No. 2017-CR-260, McCain had been convicted of petty theft,

a first-degree misdemeanor, and two counts of breaking and entering, fifth-degree

felonies; in Case No. 2018-CR-232, McCain had been convicted of aggravated

possession of drugs, a fifth-degree felony. The additional indictments were assigned

Champaign C.P. Nos. 2020-CR-26 and 2020-CR-45. In Case No. 2020-CR-26, McCain

was indicted on three counts of aggravated possession of drugs, all fifth-degree felonies,

and one count of illegal use or possession of drug paraphernalia, a fourth-degree

misdemeanor. In Case No. 2020-CR-45, McCain was indicted on two counts of forgery,

both fifth-degree felonies, and one count of aggravated possession of drugs, a fifth-

degree felony. As a result of the new indictments, the State initiated CCS revocation

proceedings in Case Nos. 2017-CR-260 and 2018-CR-232.

       {¶ 3} In Case No. 2020-CR-26, the Champaign County Grand Jury was ready to

consider a charge of aggravated possession of drugs, a third-degree felony.          This

charge, it seems, would have been based upon the aggregate weight of the drugs

(methamphetamine) involved in the already-indicted aggravated possession counts. But
                                                                                        -3-


before the charge was presented to the grand jury, the parties reached a plea agreement

as follows: (1) in Case No. 2020-CR-26, McCain pleaded guilty through a Bill of

Information to aggravated possession of drugs, a third-degree felony, and the remaining

counts were dismissed; (2) in Case No. 2020-CR-45, McCain pleaded guilty to forgery, a

fifth-degree felony, and the remaining counts were dismissed, and (3) McCain admitted

to CCS violations in Case Nos. 2017-CR-260 and 2018-CR-232. As part of the plea

agreement, the State requested imposition of a 36-month prison term in Case No. 2020-

CR-26, to be served concurrently to any prison terms imposed in Case Nos. 2020-CR-

45, 2017-CR-260, and 2018-CR-232. The trial court ultimately imposed an aggregate

prison term of 62 months. This appeal followed.

                                        Analysis

      {¶ 4} McCain’s sole assignment of error is as follows:

      [MCCAIN’S] PLEA WAS NOT KNOWING AND INTELLIGENT.

      {¶ 5} McCain suggests that his guilty pleas were not knowing and intelligent

because the Crim.R. 11 plea colloquy demonstrated he did not understand the

constitutional rights he was waiving.     On this record, we cannot agree with this

conclusion.

      {¶ 6} Due process requires that a guilty plea be knowing, intelligent, and voluntary.

Boykin v. Alabama, 

395 U.S. 238

, 

89 S. Ct. 1709

, 

23 L. Ed. 2d 274

(1969); State v. Clark,

119 Ohio St. 3d 239

, 2008-Ohio-3748, 

893 N.E.2d 462

, ¶ 25; State v. Hill, 2d Dist. Clark

No. 2019-CA-11, 2020-Ohio-7, ¶ 7. A trial court’s “[c]ompliance with Crim.R. 11(C)

ensures that a plea meets this constitutional mandate.” Hill at ¶ 7, citing State v. Cole,

2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12. “Strict compliance with the
                                                                                         -4-


Crim.R. 11(C)(2)(a) constitutional advisements is necessary to establish that a plea is

consistent with due process.”

Id., citing State v.

Bishop, 

156 Ohio St. 3d 156

, 2018-Ohio-

5132, 

124 N.E.3d 766

, citing State v. Veney, 

120 Ohio St. 3d 176

, 2008-Ohio-5200, 

897

N.E.2d 261

, ¶ 18.

       {¶ 7} A defendant’s competence to knowingly and intelligently enter a guilty plea

is gauged by the same standard used to determine whether a defendant is competent to

stand trial. State v. Simpson, 2016-Ohio-1267, 

61 N.E.3d 899

, ¶ 11 (2d Dist.), citing

Godinez v. Moran, 

509 U.S. 389

, 397-398, 

113 S. Ct. 2680

, 

125 L. Ed. 2d 321

(1993). A

defendant is presumed competent to stand trial, but, of course, this presumption is subject

to rebuttal. State v. Schooler, 2018-Ohio-3295, 

118 N.E.3d 467

, ¶ 26 (2d Dist.). Based

upon this presumption, it is the defendant’s burden to establish that he is not competent

to stand trial or plead guilty.

Id. at ¶ 29,

citing State v. Ferguson, 2018-Ohio-987, 

108

N.E.3d 1161

, ¶ 20 (2d Dist.), citing State v. Jordan, 

101 Ohio St. 3d 216

, 2004-Ohio-783,

804 N.E.2d 1

, ¶ 28. R.C. 2945.37(G) states the following regarding the findings required

to establish a defendant’s incompetency:

       * * * 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 defendant incompetent to stand trial * * *.

Thus, “[t]he test for determining whether a defendant is competent * * * is whether he * * *

has sufficient present ability to consult with * * * his lawyer with a reasonable degree of

rational understanding of the proceedings [pending] against him * * *.”           (Citations
                                                                                       -5-


omitted.) Schooler at ¶ 29. In the context of a plea, the test, as appropriately modified,

is whether the defendant has the ability to consult with his lawyer, whether he has a

reasonable and rational factual understanding of the charges to which he is pleading

guilty, and whether he has a reasonable and rational understanding of the rights he is

waiving by pleading guilty. State v. Zachery, 5th Dist. Stark No. 2004-CA-91, 2004-Ohio-

6821, ¶ 20.

        {¶ 8} Factors often considered when determining a defendant’s competence

include doubts articulated by counsel, a defendant’s “irrational behavior,” a “defendant’s

demeanor,” and any “prior medical opinion relating to competence * * *.” Schooler at

¶ 27, quoting State v. Rubenstein, 

40 Ohio App. 3d 57

, 60-61, 

531 N.E.2d 732

(8th

Dist.1987). See also Ferguson at ¶ 18.

        {¶ 9} A defendant’s low IQ or even a mild mental disability does not “necessarily”

compel the conclusion the defendant is “incapable of entering a valid plea.” Simpson at

¶ 10. See also Zachery at ¶ 22, citing Atkins v. Virginia, 

536 U.S. 304

, 306, 

122 S. Ct.

2242

, 

153 L. Ed. 2d 335

; State v. Dooley, 3d Dist. Allen No. 1-10-41, 2010-Ohio-6260,

¶ 21.

        {¶ 10} Turning to the pending case, we begin the discussion by noting the

following. First, McCain does not – nor could he – assert that the trial court did not

comply with the Crim.R. 11 plea requirements. Second, trial counsel did not suggest that

he doubted McCain’s competence, the record does not suggest that McCain engaged in

irrational behavior during the plea hearing, and there is no medical opinion casting doubt

upon McCain’s competence.        Third, the trial court was quite familiar with McCain,

including from the proceedings in Case Nos. 2017-CR-260 and 2018-CR-232, in which
                                                                                          -6-


McCain entered guilty pleas.       Finally, McCain does not argue that he could not

reasonably consult with counsel or that he did not have a reasonable understanding of

the proceedings pending against him. Rather, McCain’s assertion is very narrow; it is

simply that the Crim.R. 11 colloquy did not support the conclusion that he understood the

constitutional rights he was waiving by pleading guilty.

       {¶ 11} The constitutional rights at issue were those set forth in Crim.R. 11(C)(2)(c):

the right to a jury trial during which the State had the obligation to establish guilt beyond

a reasonable doubt; the right of confrontation, the right against self-incrimination, and the

right to compulsory process. State v. Dangler, 

162 Ohio St. 3d 1

, 2020-Ohio-2765, 

164

N.E.3d 286

, ¶ 14.

       {¶ 12} The parties agree, and the record reflects, that McCain, who was age 61 on

the date of the plea hearing, had developmental and intellectual disabilities. According

to the presentence investigation report, these disabilities were apparently congenital and

“manifest[ed] * * * in problems with impulse control, reasoning, memory, judgment, and

following social norms.” The record also reflects that McCain had a significant criminal

history dating back to 1977 and that he has been sentenced to prison on at least four

previous occasions. Significantly, the record does not reflect that McCain had ever

previously been found incompetent to stand trial or to enter a guilty plea.

       {¶ 13} The trial court, being well aware of McCain’s intellectual limitations, was

very thorough when explaining and ensuring that McCain understood the constitutional

rights he was waiving. This is not to suggest that the plea hearing was easy or seamless.

But the following exchanges, which occurred toward the end of the plea hearing, convince

us that McCain did understand the constitutional rights he was waiving by pleading guilty:
                                                                                         -7-


      THE COURT: We’ve gone over your Constitutional rights. There are five

      of them. We’ve talked about them 15 times.1 After looking – after hearing

      your answers, as well as looking at your facial expressions, I believe that

      you understand what I’m saying to you.

             I believe that you’re having trouble explaining it back to me. And the

      record should reflect that Defendant has a speech impediment that is not

      tied to intellectual disability. But, rather, the inability to form words in his

      mouth. So for transcript purposes, it will be difficulty for the court reporter

      who has not worked with Mr. McCain over the years to perhaps understand

      some of the things he’s saying.

             But I believe you understand, Mr. McCain, what I have explained to

      you. And I believe you have done a fairly good job with the evidence. But

      I want to go through it one more time so that I’m convinced that you

      understand the rights you’re giving up, okay?

      THE WITNESS: Yes.

      THE COURT: You give up the right to a jury trial. Tell me what a jury trial

      is?

      THE WITNESS: You take 12 people to find me guilty beyond a reasonable

      doubt. It takes one to find me not guilty.

      THE COURT: That’s perfect. For people who accuse you of crime, what

      are you able to do with those people? People who want to come in here



1
 This is an exaggeration, but, as noted, the record reflects the trial court’s careful and
patient explanation of each constitutional right.
                                                                            -8-


and say Jerry McCain committed a crime. What are you able to do with

them?

THE WITNESS: Have to subpoena them into court beyond a reasonable

doubt.

THE COURT: Yes, you can subpoena them into court. But are you able to

ask those people questions?

THE WITNESS: Yes, if I subpoena them into court.

THE COURT: Well, if the Prosecutor subpoenas them into court, if they are

the State’s witnesses, are you able to ask the Prosecutor’s witnesses

questions?

THE WITNESS: Yes.

THE COURT: That’s right. And you give up that right by pleading guilty.

Do you understand that?

THE WITNESS: Yes.

THE COURT: So if you plead guilty, do the police have to come in here and

testify? If you plead guilty now?

THE WITNESS: No.

THE COURT: Does the bank need to come in here and testify if you plead

guilty?

THE WITNESS: Nope.

THE COURT: Okay. What happens if you have witnesses that help Jerry

McCain? How do you get those witnesses here?

THE WITNESS: Got to subpoena them into court.
                                                                              -9-


THE COURT: And do you have the right to have witnesses come and testify

for you?

THE WITNESS: Yes.

THE COURT: All right. Do you remember what that level of proof is that

the Prosecutor has to show the jury to find you guilty? What that level of

proof is called?

THE WITNESS: The high level.

THE COURT: Yes. The high level. Do you remember what that is called

specifically? Proof beyond a reasonable doubt.

THE WITNESS: Proof beyond a reasonable doubt.

THE COURT: Do you remember that?

THE WITNESS: Yes.

THE COURT: And for probation cases it is lower. It is a preponderance of

the evidence. Do you understand this?

THE WITNESS: Yes.

THE COURT: What happens if the Prosecutor does not meet that level of

proof in either case? What happens then?

THE WITNESS: I’m found not guilty.

THE COURT: * * * And, last, if the Prosecutor is presenting his testimony

and he wants to force Jerry McCain to testify, can he force you to testify?

THE WITNESS: No.

THE COURT: Why’s that?

THE WITNESS: He has to prove me guilty.
                                                                                          -10-


       THE COURT: Well, he can’t force you to take the stand if you don’t want to.

       Do you understand that?

       THE WITNESS: Yes.

       THE COURT: So can the Prosecutor force you to take the stand?

       THE WITNESS: No.

       THE COURT: Do you understand that by pleading guilty you give up that

       right?

       THE WITNESS: Yes.

       ***

Sentencing Transcript p. 64-68.

       {¶ 14} Given this record, and recognizing the trial court’s history with McCain and

its ability to personally assess McCain’s level of understanding, the trial court did not err

in its conclusion that McCain understood the constitutional rights he waived by pleading

guilty. Thus, we cannot conclude that McCain’s guilty pleas were less than knowing and

intelligent. McCain’s sole assignment of error is overruled.

                                        Conclusion

       {¶ 15} The judgments of the Champaign County Common Pleas Court are

affirmed.

                                      .............

DONOVAN, J. and HALL, J., concur.


Copies sent to:

Jane A. Napier
Bryan Hicks
Hon. Nick A. Selvaggio
-11-

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