Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 11-17-2020

Case Style:


Case Number: C-190053

Judge: Marilyn Zayas


Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney

Defendant's Attorney:

Free National Lawyer Directory


Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.


Cincinnati, Ohio - Criminal defense lawyer represented defendant Dwight Allen with appealing his convictions, after guilty pleas, for attempted murder with a gun specification, one count of felonious assault, and carrying a concealed weapon.

Dwight Allen was charged with attempted murder with specifications,
two counts of felonious assault with specifications, aggravated burglary with
specifications, and carrying a concealed weapon after entering the home of Bennie
and Marion McPherson, pointing a gun at them, and shooting Bennie in the back.
His trial counsel entered a plea of not guilty by reason of insanity and a suggestion of
{¶3} The trial court appointed the Court Clinic to conduct an examination
of Allen. The report concluded that Allen was competent to stand trial, and the trial
court journalized an entry stating that, “This cause to be heard and was submitted on
the testimony and/or written report of Gail M. Hellmann, M.D., the Defendant being
present with counsel and the Court * * *,” and finding Allen competent to stand trial.
{¶4} Allen proceeded to a bench trial. After both McPhersons testified,
Allen decided to plead guilty. In exchange for his guilty pleas to the attempted
murder with a gun specification, one count of felonious assault, and carrying a
concealed weapon, the state dismissed the gun specifications for the felonious
assault, one felonious-assault charge, and the aggravated burglary. They agreed on
an aggregate sentence of 13 years’ incarceration, which the judge imposed.
{¶5} The following facts are based on the trial testimony of the McPhersons.
{¶6} Allen had been the caretaker for the McPhersons’ disabled grandson
for several years. However, the McPhersons’ daughter terminated his employment
in the summer of 2017 because of his drug usage and inability to properly care for the
{¶7} On November 25, 2017, Allen visited the McPhersons at their home.
Initially, they were very glad to see him and welcomed him into their home. Allen
was carrying a box that Marion believed was a gift for them. When Allen opened the
box, it contained a gun.
{¶8} Allen picked up the gun, and Bennie attempted to disarm him by
grabbing the gun with both hands, while Marion fled from the home. During the
struggle for the gun, Allen pushed Bennie, who fell to the floor. While Bennie was
down, Allen shot him in the back. Allen reloaded the gun, and pulled the trigger two
or three more times, but the gun did not fire. Bennie ran to his bedroom, retrieved
his gun, and shot Allen in the shoulder.
{¶9} After Bennie testified, Allen decided to plead guilty. After engaging in
a thorough plea colloquy with Allen, the court asked Allen’s attorneys if they believed
that Allen was competent and knowingly, intelligently, and voluntarily entering the
plea agreement. Both answered affirmatively. During the plea hearing, the state
incorporated the trial testimony into its recitation of the facts. After the recitation of
facts, Allen was given an opportunity to comment on the facts and had nothing to
add. The trial court accepted his guilty pleas.
{¶10} Prior to the imposition of the agreed sentence, Allen apologized to the
victims. He further stated, “What happened that night, I shouldn’t be in here. It was
an accident.” The court imposed the agreed sentence.
The Pleas were Knowing, Intelligent, and Voluntary
{¶11} In his first assignment of error, Allen asserts that his pleas were not
knowing, intelligent, or voluntary because he denied culpability during his apology to
the victims. Specifically, Allen contends that the trial court should have ensured his
pleas were intelligent, knowing, and voluntary after he denied culpability by claiming
the shooting was an accident. To support this assertion, he relies on State v.
Padgett, 67 Ohio App.3d 332, 338, 586 N.E.2d 1194 (2d Dist.1990), and North
Carolina v. Alford, 400 U.S. 25, 38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) fn. 10.
{¶12} However, in both of those cases, the defendants claimed innocence
while tendering their guilty pleas. In this case, Allen admitted his guilt to each
offense during the plea hearing and did not contest the recitation of facts
constituting each offense. And “a defendant who has entered a guilty plea without
asserting actual innocence is presumed to understand that he has completely
admitted his guilt.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d
51, ¶ 19. Moreover, both of Allen’s attorneys confirmed to the court that the pleas
were intelligent, knowing, and voluntary. Based on this record, we cannot conclude
that Allen’s apology to the victims was a claim of innocence.
{¶13} The first assignment of error is overruled.
The Competency Hearing was Waived
{¶14} In his second assignment of error, Allen argues that the finding of
competency was erroneous and flawed because the trial court failed to conduct a
{¶15} First, the state contends that Allen’s guilty pleas have waived his right
to challenge the trial court’s failure to conduct the competency hearing. “A
defendant who has pled guilty may, on appeal, attack only the voluntary, knowing,
and intelligent nature of the plea, and may not raise independent claims relating to
alleged deprivation of rights that occurred prior to the entry of the plea, except to the
extent such error caused the plea to be less than voluntary, knowing, and intelligent.”
State v. Cruz, 8th Dist. Cuyahoga No. 93403, 2010-Ohio-3717, ¶ 20, citing State v.
Sadowsky, 8th Dist. Cuyahoga Nos. 90696 and 91796, 2009-Ohio-341, fn. 1; State v.
Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). In this case, the failure to
hold a competency hearing “goes directly to whether his plea was voluntary,
knowing, and intelligent.” In re K.A., 8th Dist. Cuyahoga No. 104938, 2017-Ohio6979, fn. 2. Therefore, the guilty pleas did not waive a challenge to the trial court’s
failure to conduct the required competency hearing. Id.
{¶16} Essentially, Allen contends that the competency determination was in
error due to the lack of a hearing, and a hearing was required before finding him
competent. After counsel for Allen filed a suggestion of incompetency on December
14, 2017, the trial court appointed the Court Clinic to conduct an evaluation. A
competency hearing was scheduled on January 29, 2018. The Court Clinic report that
was filed with the trial court concluded that Allen was competent. The court
journalized an entry finding that Allen was competent. The entry reflects that, “This
cause to be heard and was submitted on the testimony and/or written report of Gail
M. Hellmann, M.D., the Defendant being present with counsel and the Court * * *.”
{¶17} R.C. 2945.37(E) provides for submitting the competency report as
evidence by stipulation. A defendant may waive his right to a competency hearing by
stipulating to the competency report. State v. O’Neill, 7th Dist. Mahoning No. 03 MA
188, 2004-Ohio-6805, ¶ 21. “Where the parties stipulate to the contents of the
competency reports which opine that the defendant is competent, the parties
stipulate to competency and waive the competency hearing.” Id. The entry finding
Allen competent reflects that the cause was submitted on the report with Allen and
his counsel present. Therefore, Allen waived the competency hearing. See id.
{¶18} We overrule the second assignment of error.

Outcome: Having overruled Allen’s two assignments of error, we affirm the
judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case