State v. Smith
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[Cite as State v. Smith, 2010-Ohio-4122.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 93733 STATE OF OHIO PLAINTIFF-APPELLEE vs. WILLIE SMITH DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-511860 BEFORE: Boyle, J., Blackmon, P.J., and Cooney, J. 2 RELEASED AND JOURNALIZED: September 2, 2010 ATTORNEY FOR APPELLANT Thomas A. Rein Leader Building Suite 940 526 Superior Avenue Cleveland, Ohio 44114 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: Marc D. Bullard Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.: {¶ 1} Raising a single assignment of error, defendant-appellant, Willie Smith, contends that his convictions should be reversed because his trial counsel was ineffective for failing to obtain a mental health evaluation regarding his competency and sanity. After review, we find Smith s argument lacks merit and 3 therefore affirm. {¶ 2} In August 2007, the grand jury indicted Smith on three counts: robbery, in violation of R.C. 2911.02(A)(2); possession of criminal tools, in violation of R.C. 2923.24(A); and theft, in violation of R.C. 2913(A)(1). The charges against Smith arose after he allegedly robbed a Key Bank branch in Cleveland, Ohio. Smith pled not guilty to the charges and was assigned counsel. {¶ 3} In June 2008, Smith s case was dismissed for defective indictment in light of the Ohio Supreme Court s ruling in State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917. Smith was reindicted on the exact same charges based upon the same facts. {¶ 4} A jury trial commenced in May 2009. The jury found Smith guilty of robbery and theft, but not guilty of possessing criminal tools. The trial court sentenced him to eight years in prison. Five years of postrelease control was also part of his sentence. It is from this judgment that Smith appeals. {¶ 5} To succeed on a claim of ineffective assistance, a defendant must establish that counsel s performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Counsel will only be considered deficient if his or her conduct fell below an objective standard of reasonableness. Strickland at 688. 4 {¶ 6} When reviewing counsel s performance, this court must be highly deferential and must indulge a strong presumption that counsel s conduct [fell] within the wide range of reasonable professional assistance. Id. at 689. To establish resulting prejudice, a defendant must show that the outcome of the proceedings would have been different but for counsel s deficient performance. Id. at 694. {¶ 7} Smith s entire argument centers upon the docket of his reindicted case. He contends that there is nothing in the record to indicate that his trial counsel requested that he receive a mental health evaluation, and he claims his counsel was deficient for failing to do so. {¶ 8} While Smith is correct that the docket in his reindicted case does not indicate that his counsel requested a psychiatric referral, it is not true that his counsel ignored his possible mental health issues. Contrary to Smith s claims, his counsel not only requested that Smith be evaluated for competency and sanity, the court ordered it, Smith was evaluated, and the court held a competency hearing. {¶ 9} In January 2008, in the first indicted case, Smith s counsel requested that Smith be referred to the court s psychiatric clinic for a competency evaluation pursuant to R.C. 2945.371. evaluation. Smith, however, refused to participate in the Thus, the court ordered Smith to be transported to Northcoast Behavioral Healthcare for a twenty-day inpatient competency evaluation. On 5 March 3, 2008, Dr. Michael Christie submitted a report, finding Smith was competent to stand trial. {¶ 10} The trial court then held a competency hearing. The prosecutor and defense counsel stipulated to the findings and conclusions contained in Dr. Christie s report, and the trial court adopted them. Dr. Christie opined that Smith understood the nature and objectives of the proceedings against him and was capable of assisting in his own defense. Dr. Christie further reported that Smith: (1) was minimally cooperative during the evaluation ; (2) does not have a mental illness or mental retardation ; (3) has a borderline of low average range intelligence; (3) was malingering cognitive deficits ; (4) had polysubstance dependence; and (5) had antisocial personality disorder. {¶ 11} Accordingly, we find Smith s counsel s performance was not deficient and overrule his sole assignment of error. 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. 6 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MARY J. BOYLE, JUDGE PATRICIA ANN BLACKMON, P.J., and COLLEEN CONWAY COONEY, J., CONCUR
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