State v. Wilcox, 3272

• Decision Date: 28 May 1984
• Docket Number: No. 3272,3272
• Parties: , 16 O.B.R. 298 The STATE of Ohio, Appellee, v. WILCOX, Appellant.
• Court: Ohio Court of Appeals

Page 273

16 Ohio App.3d 273

475 N.E.2d 516, 16 O.B.R. 298

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

No. 3272.

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

May 28, 1984.

Syllabus by the Court

1. A competency hearing is not automatically mandated by virtue of a plea of not guilty by reason of insanity. In order for a competency

hearing to take place, a motion for such must be made before commencement of trial.

2. The order for a psychiatric examination for the plea of not guilty by reason of insanity is insufficient to raise the issue of competency to stand trial.

3. A claim of ineffective assistance of counsel must be raised with sufficient clarity to indicate a substantial violation of an essential duty.

4. Constitutional issues cannot be considered in post-conviction proceedings under R.C. 2953.21, where they have already been or could have been fully litigated by the defendant while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him.

Wyatt McKay, Asst. Pros. Atty., for appellee.

Eugene Fehr, Canfield, for appellant.

DONOFRIO, Judge.

This is an appeal from the Court of Common Pleas of Trumbull County, Ohio.

Defendant-appellant, Donald W. Wilcox, was indicted on five counts: aggravated murder, R.C. 2903.01(B); two counts of kidnapping, R.C. 2905.01; and two counts of rape, R.C. 2907.02. The appellant pled not guilty and not guilty by reason of insanity. Included in his insanity plea was a request for a psychiatric evaluation to show that he was legally insane at the time he committed the alleged acts. The trial court ordered a forensic exam, granted the appellant's motion to have Dr. James Giannini conduct an exam, and ordered further psychiatric evaluation by other doctors.

Trial was had and the appellant found guilty on all counts except for the charge of rape. The appellant moved for a new trial largely based on the weight of the evidence; the motion was denied. On appeal to this court, the decision of the trial court was affirmed. State v. Wilcox (Sept. 28, 1981), Trumbull App. No. 2844, unreported. Appellant's appeal to the Ohio Supreme Court was also denied (case No. 81-1760).

On March 31, 1983, the appellant filed a petition for post-conviction relief. On May 25, 1983, the appellant's petition was denied.

It is from the denial of this petition that the appellant appeals. At the time that the appellant filed a written notice of plea of not guilty by reason of insanity, pursuant to R.C. 2945.39, the court properly issued a court order for forensic examination of appellant. This examination was to determine the sanity of the appellant at the time of the criminal conduct. The issue of insanity at the time of the offenses was litigated and submitted to the jury at trial.

Appellant's one assignment of error states:

"The appellant was denied due process of law as guaranteed him by the Fourteenth Amendment to the United States Constitution by the court's failure to properly determine his competency to stand trial."

In this regard the trial court found, as stated in its findings of fact and conclusions of law:

"The issue of competency to stand trial is provided for in Ohio Revised Code Section 2945.37 which states:

"(A) In a criminal action in a court of common pleas or municipal court, the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before trial, the court shall hold a hearing on the issue as provided in this section * * * [emphasis added].

"Also, Ohio Criminal Rule 12(B) states:

"Any defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by motion."

Upon review of the trial record, we do not find that there was any issue regarding appellant's competency to stand trial before trial began or during trial by oral or written motion or any other fashion. The trial court came to the same conclusion upon an exhaustive review of the entire record.

The appellant in his brief seems to argue that because the record demonstrates that appellant was in fact referred by the trial judge for psychiatric evaluation because of his entering the plea of not guilty by reason of insanity that this is sufficient enough to raise the issue of his competency to stand trial.

Since a motion was not made before trial, the right to a competency hearing was waived. In McCane v. Alvis (1954), 98 Ohio App. 506, 130 N.E.2d 372 , the case came to trial and there was no indication of insanity made to the court of common pleas in accordance with R.C. 2945.37. Instead a plea of guilty was offered and sentence was given. The court held that the right the plaintiff had to a sanity hearing was waived by his guilty plea. Id. at 508.

Appellant's plea of not guilty by reason of insanity does not automatically trigger the issue of his competency to stand trial. The court in State v. Page (1967), 11 Ohio Misc. 31, 228 N.E.2d 686 , discussed this issue. The court at 33 stated:

"It has been argued that if a defendant pleads not guilty by reason of insanity at the time of the crime, an inquiry should be made at the time of trial to ascertain if he is then sufficiently sane to stand trial. However, the Legislature did not so provide; possibly because in the latter instance (i.e. present insanity) the court considers the mental capacity of the defendant from an entirely different viewpoint than the first (i.e. insanity at the time of the crime). * * * In any event, the statute provides the manner in which the issue of present insanity can be raised, and the issue can not be raised except in the manner provided."

Clearly a competency hearing is not automatically mandated by virtue of a plea of not guilty by reason of insanity. In order for a competency hearing to take place, a motion for such must be made before trial commencement. In the absence of such motion, no hearing is mandated.

Appellant claims that the psychiatric examination to determine his sanity at the time of the criminal acts was also to determine his competency to stand trial simultaneously. The state contends that appellant's understanding on this issue is totally misconstrued. The order for an examination for not guilty by reason of insanity and competency to stand trial are not synonymous. The latter issue must independently be raised before the court by a proper motion. The examination for the plea of not guilty by reason of insanity was properly made pursuant to R.C. 2945.39. The issue of competency to stand trial should have been raised pursuant to R.C. 2945.37.

The statute provides the presumption that if a person does not raise the issue by motion,...