Williams, In re

• Decision Date: 23 May 1997
• Docket Number: No. 15803,15803
• Citation: 116 Ohio App.3d 237,687 N.E.2d 507
• Parties: In re WILLIAMS, Appellant. *
• Court: Ohio Court of Appeals

Page 237

116 Ohio App.3d 237

687 N.E.2d 507

In re WILLIAMS, Appellant. ^*

No. 15803.

Court of Appeals of Ohio,

Second District, Montgomery County.

Decided May 23, 1997.

Chantel Doakes, Montgomery County Assistant Prosecuting Attorney, Appellate Division, Dayton, for appellee.

David H. Bodiker, Ohio Public Defender, and Susan A. Ward, Assistant Public Defender, Columbus, for appellant.

FREDERICK N. YOUNG, Presiding Judge.

This appeal arises from an action in the Montgomery County Court of Common Pleas, Juvenile Division. Nicholas Williams, a moderately retarded fifteen-year-old juvenile, informed his therapist that he had engaged in a brief sexual relationship with a nine-year-old girl the previous summer, while he was a runaway. A complaint charging Nicholas with two counts of statutory rape, an aggravated felony of the first degree under R.C. 2907.02(A)(1)(b), was filed on November 2, 1996, and a detention hearing was held the same day.

One week after the initial hearing, Nicholas's attorney filed a motion for mental evaluation. Nicholas was evaluated by Dr. Laura Fugimura, the court psychologist, and Dr. Mark Williams, an independent psychologist, for the purpose of determining his competency to stand trial. Both doctors filed psychological evaluation reports with the court. The reports documented Nicholas's history of physical abuse at the hands of his mother, physical and sexual abuse by other family members, and his own past victimization of other children. His social history report revealed that Nicholas had attended outpatient sex specific counseling and that he was placed in a foster home soon after the alleged rape occurred. While Nicholas apparently ran away from his foster home on the first night he was there, he later came to enjoy living with his foster parents who, according to Nicholas, express affection and caring in a manner that he has never before experienced. After examining him, both doctors determined that Nicholas has the intellectual abilities of a six year old, but disagreed as to his competency to stand trial. Dr. Fujimura found that, although Nicholas "did not seem to understand the functions of a Judge, jury, or witness," he had an adequate understanding of the role of the attorneys and the circumstances surrounding the charges to be competent for trial. Dr. Williams, on the other hand, concluded that Nicholas was incompetent to stand trial.

Magistrate Cunningham found Nicholas to be competent to stand trial in an entry captioned "Delinquency Magistrate's Order of Continuance." The plea and dispositional hearing was held on February 13, 1996, before Magistrate Cunningham. At the hearing, Nicholas Williams admitted to one count of rape in violation of R.C. 2907.02(A)(1)(b). Before accepting the plea, Magistrate Cunningham explained each of Nicholas's relevant rights and, after each one, asked whether he understood the right. Nicholas responded "yes" to every question. Nicholas also answered "yes" when the magistrate asked him whether the allegations in the complaint were true. Without any further exchanges with Nicholas, the magistrate accepted the admission and proceeded to disposition.

The guardian ad litem, Gordon Taylor, indicated that his primary concern was that Nicholas receive treatment. Wayne Gilkison, the probation officer, emphasized Nicholas's need for treatment, but stated that the probation department had been unsuccessful in finding placement for him. He stated that there would be no services available to Nicholas if he were returned to the community and recommended that Nicholas be committed because of the high risk that he would re-offend. Nicholas's attorney asserted that Gordon Taylor had been able to locate "two institutions or treatment facilities willing and ready to take Nicholas with his I.Q. and his sex-specific needs." One of the facilities was Fairfield Academy in Thornville, Ohio, which would have provided placement for Nicholas at a cost of $225 per day, for a period of between eighteen and twenty-four months. According to Nicholas's attorney, the other facility, which is located in Parma, Ohio, was ready to assess Nicholas for placement. The guardian ad litem qualified these assertions, noting that Nicholas's acceptance into Fairfield Academy was contingent on a satisfactory interview. He also stated that while he was unaware whether the Parma facility had or would formally accept Nicholas, it was his understanding that acceptance was dependent on assurances of funding and, possibly, an interview with Nicholas.

The magistrate responded that she did not believe that sufficient funding was available for Nicholas to receive $225 per day treatment. The guardian ad litem urged the magistrate to consider attempting to find funding through the Interagency Clinical Assessment Team (ICAT) before imposing a sentence. However, the magistrate concluded that a continuance would cause "unnecessary delay." The magistrate also denied Nicholas's attorney's oral motion requesting that an ICAT assessment be completed to determine whether funding could be found for the placement of Nicholas in a sex-offender facility. Finally, the magistrate announced that she was committing Nicholas to the Ohio Department of Youth Services for a period of one year, and ordering that he receive sex-specific counseling and treatment while in detention.

The magistrate's decision and judge's order of adjudication and disposition, filed on February 20, 1996, committed Nicholas "to the Department of Youth Services for care and rehabilitation" for a term of at least one year and not more than six years. The decision made no express mention of sex-specific counseling. Included with the decision was the judge's order stating only that "[t]he above Magistrate's Decision is hereby adopted as an Order of this Court." Nicholas Williams filed a timely notice of appeal and asserts five assignments of error.

II

The following two assignments of error concern the magistrate's determination that Nicholas was competent to stand trial for statutory rape:

A

FIRST ASSIGNMENT OF ERROR:

"The magistrate erred in finding Nicholas competent to stand trial.

"Nicholas was deprived of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution, Article One, Section Sixteen of the Ohio Constitution in that he was incompetent to stand trial."

Under his first assignment of error, appellant alleges that he was denied due process of law because the magistrate's determination of competency was not supported by the evidence. Generally, where, as here, the appellant has failed to preserve the alleged error by lodging an objection, ¹ his right to contest it is waived. See State v. DeNicola (1955), 163 Ohio St. 140, 56 O.O. 185, 126 N.E.2d 62, paragraph three of the syllabus; State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311, reconsideration denied (1996), 75 Ohio St.3d 1453, 663 N.E.2d 333, certiorari denied (1996), 519 U.S. ----, 117 S.Ct. 240, 136 L.Ed.2d 169. Thus, we will review the issue for plain error. Crim.R. 52(B). We recognize plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Landrum (1990), 53 Ohio St.3d 107, 111, 559 N.E.2d 710, 717, certiorari denied (1991), 498 U.S. 1127, 111 S.Ct. 1092, 112 L.Ed.2d 1196, rehearing denied (1991), 499 U.S. 971, 111 S.Ct. 1612, 113 L.Ed.2d 673.

Generally, in order to prevail under the plain error standard, an appellant must demonstrate that the outcome of his case would clearly have been different but for the error that he alleges. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043, 1046. The United States Supreme Court and the Supreme Court of Ohio have held that fundamental notions of due process demand that a criminal defendant who is not legally competent may not be tried or convicted of a crime. See Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, 438, reconsideration denied, 73 Ohio St.3d 1428, 652 N.E.2d 801, certiorari denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766. Because an incompetent defendant may not be convicted of a crime, a court's decision regarding the competency of an individual to stand trial will always be outcome-determinative in the most fundamental sense. See Lagway v. Dallman (N.D.Ohio 1992), 806 F.Supp. 1322, 1333 ("Competency is an underlying predicate to due process."). Thus, if error occurred in the competency proceedings such that the magistrate's conclusion that Nicholas was competent to stand trial cannot be relied upon, the decision must be reversed.

Although Nicholas is not a criminal defendant, this court has held that "the right not to be tried while incompetent" is as fundamental in juvenile proceedings as it is in criminal trials of adults. In re Johnson (Oct. 25, 1983), Montgomery App. No. 7998, unreported, at 10, 1983 WL 2516. The constitutional test under the Fourteenth Amendment for competency to stand trial is "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States (1960), 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825. Under Ohio's codification of this standard, a defendant is presumed to be competent unless it is demonstrated by a preponderance of the evidence 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 defense." R.C. 2945.37(A). While Juv.R. 32(A)(4) provides that the court may order a mental examination where competency is in issue, no statutory standard has been enacted to guide competency determinations in juvenile proceedings. This court, however,...