State v. Swift

• Decision Date: 16 February 1993
• Docket Number: No. 92-G-1687,92-G-1687
• Citation: 621 N.E.2d 513,86 Ohio App.3d 407
• Parties: The STATE of Ohio, Appellee, v. SWIFT, Appellant. *
• Court: Ohio Court of Appeals

Page 407

86 Ohio App.3d 407

621 N.E.2d 513

The STATE of Ohio, Appellee, v. SWIFT, Appellant. ^*

No. 92-G-1687.

Court of Appeals of Ohio, Eleventh District, Geauga County.

Decided Feb. 16, 1993.

David P. Joyce, Geauga County Pros. Atty., and Dennis M. Coyne, Asst. Pros. Atty., Chardon, for appellee.

Michael A. Partlow, Cleveland, for appellant.

CHRISTLEY, Judge.

Defendant-appellant, Thomas A. Swift, appeals his conviction for rape, a violation of R.C. 2907.02(A)(2).

A bill of information was filed against appellant charging him with rape. On December 27, 1991, appellant entered a plea of guilty to the charge pursuant to a plea agreement. The trial court found appellant guilty and ordered a presentence investigation. On February 6, 1992, the trial court sentenced appellant to an indefinite term of incarceration for a period of no less than eight years and no more than twenty-five years and ordered appellant to pay the costs of prosecution pursuant to R.C. 2947.23.

Appellant has filed a timely notice of appeal and now presents the following assignments of error:

"1. The trial court erred, to the prejudice of the appellant, by accepting a guilty plea which was not given knowingly and voluntarily.

"2. The trial court abused its discretion in sentencing the appellant to an indefinite term of incarceration of 8 to 25 years."

In addition to the foregoing, appellant has filed a pro se brief raising the following errors:

"1. That the Appellant's plea of guilty to Rape Ohio Revised Code 2907.02 was not knowly [sic], voluntarily with proper advice and full understanding of the consequences when the Bill of Information lacked elements thereof.

"2. That the Trial Court lacked jurisdiction to accept Appellant's plea to Rape when he should have been charged with Sexual Battery, Ohio Revised Code 2907.03.

"3. That the Appellant's plea of guilty is an infraction of procedure of due process, due process [sic], and equal protection of law 5th, 6th, 8th, 9th, and 14 Ams [sic] U.S. Constitution in accordance with Article I, sections 2, 9, 10, and 16 Ohio Constitution.

"4. Appellant's Article I, section 10 Ohio Constitution in conjunction with 5th Ams [sic] U.S. Constitution pursuant to procedural of due process, due process of law, and due process clause was violated when Ravenwood Mental Health Center turned his Mental Health confidentiality records over to Human Services for prosecution with [sic ] advising him of his self-incrimination State and Federal Constitutional Rights, as cited in 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] Miranda v. Arizona [ (1966) ]."

In the first assignment of error, appellant argues that his guilty plea was not made knowingly and voluntarily because he did not understand both the nature of the rape charge and that the state would have to prove that he forced or threatened force in compelling his daughter to submit to sexual intercourse. Appellant further contends that he was not mentally competent to enter a guilty plea.

Regarding appellant's mental competence, the trial court made the following inquiry:

"THE COURT: Have you ever been treated for any mental disorder?

"MR. SWIFT: Yes, sir. I have had suicide attempts in the past. I have had problems.

"THE COURT: When?

"MR. SWIFT: I have had, you know, a lot of suicide problems. I'm not in that position now because of my religion. I can't I talked to--

"THE COURT: Well, are you now competent mentally?

"MR. SWIFT: Well, I'm very depressed. I have been very depressed for a long period of time. When my mother-in-law made the initial call it was to get me some treatment for the depression and to help our daughter.

"She had made some comments to Human Services there, and kind of right now she is feeling very deceived because her desires, she feels, is [sic ] not being helped.

"THE COURT: Are you doing this of your own free will or is anybody pressuring you into it?

"MR. SWIFT: Well, I'm going through this because I want to get well. I talked to Ravenwood. I have gone through their evaluation.

"I had an appointment set up next Friday with Mr. Dauler at Ravenwood. I'm planning on getting some help with some depression.

"THE COURT: The Stop Program?

"MR. SWIFT: And I was hoping to get into their Stop Program as well as try to do what I can for my family.

"THE COURT: You understand that you won't get into the Stop program?

"MR. SWIFT: I know that."

Appellant's attorney then offered the following:

"MR. UMHOLTZ: Your Honor, I have had some rather extensive conversations with Mr. Swift over the course of the past week. And we have discussed this matter, I believe, fully.

"I have explained to him that it's not even a probation[able] offense; that he will not be receiving probation. He understands that.

"Perhaps this is better addressed at sentencing but he, I would have to commend him that he is not denying his participation in this matter. He does want treatment.

"He realized that treatment is not an option at this point because of the mandatory prison sentence that will be imposed.

"Nevertheless, he does not want to put his daughter or the family through a trial. He is, as far as I know, he's never denied his involvement in this matter.

"We have discussed the possibility of not guilty by reason of insanity plea. He doesn't feel that that's appropriate.

"He's aware of all his options, and I think that he is making this plea knowingly and voluntarily although somewhat certainly with mixed emotions and with a great deal of sadness. But nevertheless, he is making it knowingly, understandingly, and voluntarily."

The foregoing record, although demonstrating that appellant may have been suffering from some mental illness such as depression, does not demonstrate mental incompetence at the time of rendering such plea. R.C. 2945.37(A) states that a criminal defendant is presumed competent to stand trial unless it is established that he is unable to understand the nature of the proceedings and cannot assist in his defense. In interpreting this definition, the Ohio Supreme Court has stated that mere emotional or mental instability is not the same as incompetency: "A defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel." State v. Bock (1986), 28 Ohio St.3d 108, 110, 28 OBR 207, 210, 502 N.E.2d 1016, 1019.

Taken as a whole, the record before this court does not support the conclusion that the trial court abused its discretion in not ordering a psychiatric examination sua sponte. Appellant's concern over treatment does not mean that he was confused or did not comprehend what was occurring in the proceeding. Thus, this aspect of the first assignment is without merit.

Concerning the lack of a "knowing" entry of a plea, when the trial court proceeded to inform appellant of his rights, pursuant to Crim.R. 11, it accepted appellant's plea as follows:

"THE COURT: Okay. How do you plead to the Bill of Information and to the charge of rape?

"MR. SWIFT: Guilty, sir.

"THE COURT: Tell me what you did.

"MR. SWIFT: I had intercourse with my daughter. It was being used as punishment.

"THE COURT: It was being used as punishment?

"MR. SWIFT: Yes. I get no pleasure out of it, even with my wife.

"THE COURT: And your daughter was under the age of 13?

"MR. SWIFT: Yes, sir.

"THE COURT: And did you compel her by force?

"MR. SWIFT: I didn't force her; I gave her a choice of that or being spanked. She made that choice.

"THE COURT: So, you really made her submit by force didn't you. By threat of force anyway.

"MR. SWIFT: Well, I gave her a choice.

"THE COURT: Well, if you threatened [that she] either be spanked or submit, I would say that's by threat of force."

The question raised by the above dialogue is whether a trial court is required to fully explain the legal significance of the offense's elements when accepting a plea, i.e., did the defendant have to fully understand what "force" was under the law before his plea could be accepted?

The courts of this state have generally held that a detailed recitation of the elements of the charge is not required under Crim.R. 11(C)(2)(a). State v. Rainey (1982), 3 Ohio App.3d 441, 3 OBR 519, 446 N.E.2d 188. The court's determination that the defendant understands the charge can be based on the surrounding circumstances, such as recitations of discussions between the defendant and his attorney.

Thus, the trial court in the instant case was not required to define to the defendant what "force" was. A guilty plea could have been accepted if the defendant had admitted the facts that formed the basis of the charge. That is, if the defendant in this case had admitted, without saying anything else, that he had threatened to punish his victim if she did not submit, the trial court could have accepted the plea without any further discussion of the elements. However, in this case, the defendant qualified his admissions when he indicated that he did not believe that giving an ultimatum to the victim constituted the use of "force."

Although there are no cases specifically addressing the issue of the extent to which a trial court must explain an element once the defendant has indicated that he does not understand, it is clear that a court must "clear-up" any confusion on the part of the defendant before it can accept a guilty plea. For example, in State v. Funk (Oct. 22, 1986), Medina App. No. 1499, unreported, 1986 WL 11921 the Ninth Appellate District reversed a conviction based upon a plea because the trial court did not inform the defendant of the maximum penalty for the charge, after the defendant had indicated that he thought it was less.

The leading federal case on this particular point appears to be Nash v. Israel (C.A.7, 1983), 707 F.2d 298. Nash was charged under Wisconsin law with a form of aiding and abetting in a murder. During the course of his plea hearing, Nash stated that he could not see how h...