State v. Qualls, 87AP-313

• Decision Date: 23 June 1988
• Docket Number: No. 87AP-313,87AP-313
• Citation: 50 Ohio App.3d 56,552 N.E.2d 957
• Parties: The STATE of Ohio, Appellee, v. QUALLS, Appellant.
• Court: Ohio Court of Appeals

Page 56

50 Ohio App.3d 56

552 N.E.2d 957

The STATE of Ohio, Appellee, v. QUALLS, Appellant.

No. 87AP-313.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 23, 1988.

Syllabus by the Court

1. The issue of a defendant's competency to participate in probation revocation proceedings may be raised by the court or defendant, and the decision to hold a competency hearing must be made on a case-by-case basis in the exercise of the sound discretion of the trial court.

2. Insanity is not a complete defense in a probation revocation hearing but is a mitigating factor which a court should consider when the issue is timely raised.

Michael Miller, Pros. Atty., and Joyce S. Anderson, for appellee.

Daniel A. More, for appellant.

WHITESIDE, Presiding Judge.

Defendant, Robert Qualls, appeals from a judgment of the Franklin County Court of Common Pleas and raises two assignments of error as follows:

"1. The trial court erred in proceeding with defendant-appellant's probation revocation hearing and sentencing when there were substantial indications that defendant-appellant was incompetent. Said error denied the defendant-appellant due process of law as guaranteed by the United States and Ohio Constitutions.

"2. The trial court erred in revoking defendant-appellant's probation and invoking a higher sentence when the appellant's violations were the result of his mental illness. Said error denied the defendant-appellant his right to due process of law as guaranteed by the United States and Ohio Constitutions."

Defendant was indicted for aggravated burglary, pleaded guilty to attempted burglary and was sentenced to two to ten years' imprisonment, with fifteen days' jail credit. Defendant filed a motion for shock probation, which was granted on November 4, 1986, and defendant was placed on probation for five years. On December 8, 1986, defendant was arrested for menacing and criminal trespassing, and on December 15, 1986, defendant was convicted of menacing. On February 4, 1987, defendant was arrested for, and pleaded guilty to, a charge of disorderly conduct. In response to the conviction on the charge of menacing, two probation revocation hearings were held, one on February 10, 1987, and the other one on January 13, 1987, during which reports from the Franklin County Sheriff's Department and Southeast Community Health Center were stipulated into evidence. Based upon the stipulations, the trial court found that defendant had violated the conditions of his probation and ordered defendant to be examined by the Southwest Forensic Psychiatry Center.

On March 5, 1987, the trial court held a third hearing, during which a report from the Southwest Forensic Psychiatry Center was stipulated into evidence. Defendant and counsel had an opportunity to comment. The trial court sentenced defendant to five to ten years in the state penitentiary and wrote a letter to the Superintendent of the Chillicothe Correctional Institute stating that defendant "has a significant mental problem which must be treated."

Defendant, in his first assignment of error, contends that the trial court erred in proceeding with the revocation hearing where there were indications that defendant was not competent to participate in the proceeding. Defendant asserts that there existed substantial evidence casting doubt on defendant's competency to participate in the proceedings.

The determinative issue is whether due process requires a determination of defendant's competency at the probation revocation hearing.

Defendant had no statutory right to a determination of competency. R.C. 2945.37(A) states that, in a criminal action, the court, prosecutor, or defendant may raise the issue of defendant's competency to stand trial. If the issue is raised before trial, the court shall hold a hearing on the issue. If the issue is raised after trial, the court shall hold a hearing on the issue only for good cause shown. Moreover, a defendant is presumed competent to stand trial "unless it is proved by a preponderance of the evidence in a hearing under this section that because of his present mental condition he is incapable of understanding the nature and objective of the proceedings against him or of presently assisting in his own defense." R.C. 2945.37 addresses competency to stand trial. Defendant was not on trial but, rather, was participating in a probation revocation hearing, which occurred as a result of defendant's arrest and conviction for menacing and his later arrest for disorderly conduct, all of which occurred while defendant was on shock probation.

The Fourteenth Amendment to the United States Constitution declares that no state shall deprive any person of life or liberty without due process of the law. It has been established that before probation can be revoked, due process requires that a probationer be given a preliminary and a final revocation hearing. In Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, the United States Supreme Court held that a probationer is entitled to a preliminary and final revocation hearing under the condition specified in Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, which set forth the following due process requirements for revocation of parole, at 489, 92 S.Ct. at 2604, which include, in pertinent part:

"* * * (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body * * *; (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. * * * "

The United States Supreme Court in Morrissey, supra, at 480, 92 S.Ct. at 2600, stated that revocation does not deprive an individual of the absolute right of liberty to which every citizen is entitled, but only of a conditional right of liberty properly dependent on the observance of special restrictions. Thus, the full panoply of due process rights is not available, but minimal due process requirements must be recognized. The United States Supreme Court in Gagnon, supra, found that the right of an indigent facing revocation of probation to state-appointed counsel is to be determined on a case-by-case basis. The Gagnon court recognized that the effectiveness of the rights guaranteed in Morrissey, supra, may in some instances depend on the use of the skills which a probationer is unlikely to possess.

In the same manner, we find that the effectiveness of the minimal standards enumerated in Morrissey, supra, namely (1) disclosure of the evidence against defendant; (2) the opportunity of the defendant to be heard and to present witnesses and documentary evidence; and (3) the right to confront and cross-examine those witnesses may be rendered null if the defendant is not competent to understand and to participate in or to assist counsel in participating in the proceedings. Accordingly, we hold that the issue as to the need for a competency hearing may, as in R.C. 2945.37(A), be raised by the court or defendant, and the decision to hold such a hearing must be made on a case-by-case basis in the exercise of the sound discretion of the trial court. Certainly, if a competency hearing is requested by defendant and denied by the trial court, grounds for refusal should be stated succinctly in the record. Moreover, a defendant shall be presumed competent unless the issue is raised before or during a probation revocation hearing and there is demonstrated a substantial basis for the suggestion of incompetency.

It is clear from the record that a hearing was conducted and that defendant was present and was apprised of the grounds upon which his probation was being revoked. However, defendant had the assistance of counsel, and the record clearly shows that defendant in this case did not at any time during the proceedings raise the issue of his competency to participate in and to understand the proceedings and their result. Furthermore, the...