STATE OF OHIO -vs- JACK A. MCCONNELL

- Criminal defense attorney represented Jack A. McConnell with discharge of a firearm on or near a prohibited premises, a third-degree felony in violation of R.C. 2923.162(A)(3) and (C)(2); having weapons while under disability, a third-degree felony and felonious assault with a firearm a second-degree felony.

On February 20, 2019, Defendant-Appellant Jack A. McConnell was driving

on State Route 204 when his car left the roadway. He exited his car with a handgun and

discharged it towards a vehicle driving on the road, occupied by four women. McConnell

was arrested and indicted by the Perry County Grand Jury on March 27, 2019 for

discharge of a firearm on or near a prohibited premises, a third-degree felony in violation

of R.C. 2923.162(A)(3) and (C)(2); having weapons while under disability, a third-degree

felony in violation of R.C. 2923.13(A)(3); and felonious assault with a firearm specification,

a second-degree felony in violation of R.C. 2903.11(A)(2) and (D)(1)(a) and R.C.

2941.145. McConnell entered a plea of not guilty to the charges.

First Evaluation

{¶3} McConnell filed a "Motion for Evaluation of Current Competency to Stand

Trial and Sanity at the Time of the Alleged Offense” on May 22, 2019. He requested an

expert evaluation at the public expense. He simultaneously filed a "Written Plea of Not

Guilty by Reason of Insanity.”

{¶4} On May 23, 2019, the trial court granted the motion for evaluation. It ordered

the evaluation of McConnell's mental competence and sanity to be completed by Forensic

Diagnostic Center of District Nine. McConnell did not object to Forensic Diagnostic Center

completing the evaluations.

Perry County, Case No. 20-CA-00005 3

{¶5} Reports of the two evaluations conducted by the Forensic Diagnostic

Center of District Nine were filed with the trial court on June 28, 2019.

{¶6} On July 2, 2019, the trial court held a hearing regarding the evaluations.

Zach Meranda, trial counsel's partner, appeared at the hearing to represent McConnell

because trial counsel was unable to attend the hearing. The trial court asked the parties

if the attorneys had an opportunity to review the evaluations, to which both responded

they had. (T. 3). The trial court asked:

THE COURT: Okay. And Mr. Meranda, did you wish to stipulate to either

one of those or --

MR. MERANDA: Your Honor, I've had an opportunity to review both the

reports. At this time we would stipulate to their findings, and – that's

contained in both reports at this time.

(T. 3).

{¶7} The trial court found McConnell was competent to stand trial. (T. 3). It asked

if McConnell was going to withdraw his plea of not guilty by reason of insanity. Meranda

stated he would discuss it with McConnell's trial counsel so trial counsel could discuss it

with the court. (T. 4).

{¶8} The trial court journalized its findings via journal entry filed July 3, 2019. The

entry stated,

The parties stipulated to the evaluation. It is Dr. Adkins' professional

opinion, with a reasonable degree of psychological certainty, that the

Defendant is currently capable of understanding the legal proceedings

against him and capable of assisting counsel in his own defense. * * * In

Perry County, Case No. 20-CA-00005 4

addition, the parties stipulated to Dr. Adkins' report of the Defendant's

mental state at the time of the offense also filed on June 28, 2019.

(Judgment Entry, July 3, 2019).

Second Evaluation

{¶9} On July 25, 2019, McConnell filed a second motion for evaluation at public

expense of his competency to stand trial and sanity at the time of the alleged offense. He

also filed a written plea of not guilty by reason of insanity. The trial court held a hearing

on the motion on August 1, 2019. Trial counsel stated that based on his conversations

with his client and McConnell's family, he was requesting a second opinion from Dr.

Daniel Davis regarding McConnell's competency to stand trial and sanity at the time of

the alleged offense. (T. 4). Trial counsel stated Dr. Davis used a different analysis method

than the Forensic Diagnostic Center. (T. 6). The trial court did not understand why

McConnell would stipulate to the first evaluation. (T. 4). Trial counsel stated:

MR. ITAYIM: The results of the first evaluation, we are – we've stipulated

to. But we can request a second opinion even if we have agreed – even if

we've agreed to stipulate to that document.

THE COURT: And you've agreed that he's competent?

MR. ITAYIM: We – the – the Court deemed him competent. We just

stipulated to the document.

(T. 4-5).

{¶10} The trial court issued its judgment on August 19, 2019. It granted the motion

in part to allow a second sanity evaluation completed by Dr. Daniel Davis. It denied

Perry County, Case No. 20-CA-00005 5

McConnell's request for a second competency evaluation completed at the public

expense.

{¶11} The evaluation was filed on October 29, 2019.

Change of Plea and Sentencing

{¶12} On November 15, 2019, the trial court held a change of plea hearing where

McConnell entered a plea of guilty to the charge of felonious assault with a firearm

specification. The State dismissed the remaining charges. The trial court conducted a

plea colloquy and accepted McConnell's change of plea but ordered a presentence

investigation before sentencing. (Plea of Guilty, Nov. 18, 2019).

{¶13} McConnell appeared for a sentencing hearing on January 27, 2020. Via

sentencing entry filed February 3, 2020, the trial court sentenced McConnell to three

years in prison for felonious assault and three years in prison for the firearm specification,

to be served consecutively.

{¶14} It is from this sentencing entry that McConnell now appeals.

ASSIGNMENTS OF ERROR

{¶15} McConnell raises one Assignment of Error:

{¶16} "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

APPELLANT'S MOTION FOR A SECOND COMPETENCY EVALUATION.”

ANALYSIS

{¶17} McConnell contends in his sole Assignment of Error that the trial court

abused its discretion when it denied his request for a second competency evaluation at

public expense. Based on the record before us, we disagree.

Perry County, Case No. 20-CA-00005 6

First Evaluation

{¶18} McConnell initially entered a plea of not guilty to the charges, but prior to

trial, he filed a written plea of not guilty by reason of insanity ("NGRI”) and argued he was

not competent to stand trial. Pursuant to R.C. 2945.37(B), "In a criminal action in a court

of common pleas, * * * the * * * defense may raise the issue of the defendant's competence

to stand trial. If the issue is raised before the trial has commenced, the court shall hold a

hearing on the issue as provided in this section.” After McConnell filed motions raising the

issue of his competence to stand trial and his NGRI plea, the trial court ordered an

evaluation pursuant to R.C. 2945.371(A):

If the issue of a defendant's competence to stand trial is raised or if a

defendant enters a plea of not guilty by reason of insanity, the court may

order one or more evaluations of the defendant's present mental condition

or, in the case of a plea of not guilty by reason of insanity, of the defendant's

mental condition at the time of the offense charged. An examiner shall

conduct the evaluation.

{¶19} After the evaluations were filed, the trial court held a competency hearing

on July 2, 2019. The standard for competence is set forth in R.C. 2945.37(G):

A defendant is presumed to be competent to stand trial. If, after a hearing,

the court finds by a preponderance of the evidence that, because of the

defendant's present mental condition, the defendant is incapable of

understanding the nature and objective of the proceedings against the

defendant or of assisting in the defendant's defense, the court shall find the

Perry County, Case No. 20-CA-00005 7

defendant incompetent to stand trial and shall enter an order authorized by

section 2945.38 of the Revised Code.

State v. Russell, 5th Dist. Ashland No. 18-COA-021, 2019-Ohio-692, 2019 WL 982241, ¶

11.

{¶20} The definition for the legal insanity standard is set forth in R.C.

2901.01(A)(14). A person is "not guilty by reason of insanity” if the person proves that at

the time of the commission of the offense, the person did not know, as a result of a severe

mental disease or defect, the wrongfulness of the person's acts. Notably, the standard for

competency is different, in that it relates to the defendant's present mental condition and

his ability to understand the nature of the proceedings against him and to assist his

counsel in his defense. State v. Eick, 5th Dist. Stark No. 2010CA00267, 2011-Ohio-1498,

¶ 28 citing R.C. 2945.37.

{¶21} NGRI is an affirmative defense that must be proved by the defendant by a

preponderance of the evidence. State v. Eick, 5th Dist. Stark No. 2010CA00267, 2011-

Ohio-1498, ¶ 29 citing State v. Jennings, 10th Dist. Franklin No. 05AP–1051, 2006–Ohio–

3704, 2006 WL 2022235, ¶ 10; State v. Taylor, 98 Ohio St.3d 27, 2002–Ohio-7017, 781

N.E.2d 72, ¶ 64; R.C. 2901.05(A). With an insanity defense, the defendant must persuade

the trier of fact that at the time of the commission of the offense, he did not know the

wrongfulness of his acts, as a result of a severe mental disease or defect. Jennings at ¶

10. The proper standard for determining whether a defendant has successfully

demonstrated this defense and thus is entitled to an NGRI instruction is whether he has

" ' "introduced sufficient evidence, which, if believed, would raise a question in the minds

of reasonable men concerning the existence of such issue.” ' " State v. Thomas, 10th

Perry County, Case No. 20-CA-00005 8

Dist. Franklin No. 06AP–675, 2007–Ohio–1171, 2007 WL 778606, ¶ 11, quoting State v.

Tantarelli, 10th Dist. No. 94APA11–1618, 1995 WL 318730 (May 23, 1995), quoting State

v. Melchior, 56 Ohio St.2d 15, 20–21, 381 N.E.2d 195 (1978).

{¶22} At the competency hearing, the parties stipulated to the findings in the

evaluations. The trial court filed its judgment entry on July 3, 2019, finding McConnell was

competent to stand trial.

Second Evaluation

{¶23} Less than a month later, McConnell filed a second motion for evaluation to

determine his competency to stand trial and his mental condition at the time of the alleged

offense. After a hearing on the motion, the trial court granted the motion for a second

evaluation of McConnell's mental condition at the time of the alleged offense but denied

the motion for a second evaluation of his competency to stand trial. McConnell's

arguments on appeal solely regard the trial court's denial of his request for a second

evaluation of his competency to stand trial.

{¶24} It is within the trial court's discretion to order a second evaluation. R.C.

2945.371(A) states in pertinent part, "If the issue of a defendant's competence to stand

trial is raised * * *, the court may order one or more evaluations of the defendant's present

mental condition.” (Emphasis added.) "* * * [T]he use of the word 'may' supports the

conclusion that a trial court is not required to order an evaluation of the defendant's mental

condition every time he raises the issue. Instead, the wording of the statute implies that

the ordering of an examination is a matter within the discretion of the trial court.” State v.

Bailey, 90 Ohio App.3d 58, 67, 627 N.E.2d 1078 (11th Dist.1992); State v. Eick, 5th Dist.

Stark No. 2010CA00267, 2011-Ohio-1498, ¶ 32. To find that the trial court abused its

Perry County, Case No. 20-CA-00005 9

discretion in denying Appellant's request for a competency re-evaluation, we must find

that the trial court's decision was unreasonable, arbitrary, or unconscionable and not

merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

{¶25} McConnell agues the trial court abused its discretion when it denied the

motion for a second competency evaluation. McConnell contends in his appeal that while

Mr. Meranda (who appeared at the hearing on trial counsel's behalf) stipulated to the

findings of the competency evaluation, trial counsel believed that Mr. Meranda only

stipulated to the document. McConnell does not cite R.C. 2945.37(E) in support of his

argument, but pursuant to that statute, "[t]he prosecutor and defense counsel may submit

evidence on the issue of the defendant's competence to stand trial. A written report of the

evaluation of the defendant may be admitted into evidence at the hearing by stipulation,

but, if either the prosecution or defense objects to its admission, the report may be

admitted under sections 2317.36 to 2317.38 of the Revised Code or any other applicable

statute or rule.” We do not believe R.C. 2945.37(E) supports McConnell's argument on

appeal based on the discussion of the competency evaluation at the first and second

hearings.

{¶26} At the first hearing, the trial court asked the parties if the attorneys had an

opportunity to review the evaluations, to which both responded they had. (T. 3). The trial

court next asked:

THE COURT: Okay. And Mr. Meranda, did you wish to stipulate to either

one of those or --

Perry County, Case No. 20-CA-00005 10

MR. MERANDA: Your Honor, I've had an opportunity to review both the

reports. At this time we would stipulate to their findings, and – that's

contained in both reports at this time.

(T. 3). Mr. Meranda did not tell the trial court that he only stipulated to the admission of

the evaluation into evidence, nor did he object to the admission of the evaluation.

{¶27} Trial counsel stated in his motion for second evaluation that he was

requesting a second evaluation because his discussions and recent interactions with

McConnell caused him to question McConnell's ability to appreciate the criminal nature

of actions he allegedly committed. (Motion, July 25, 2019). At the August 1, 2019 hearing

on the motion for the second competency evaluation, trial counsel stated that based on

his conversations with his client and McConnell's family, he was requesting a second

opinion regarding McConnell's competency to stand trial and sanity at the time of the

alleged offense. (T. 4). Trial counsel and the trial court had the following discussion about

the stipulation to the first competency evaluation:

THE COURT: So I've already found him competent to stand trial based

upon the stipulation.

MR. ITAYIM: I'm aware, Your Honor.

THE COURT: So you're asking for another – another evaluation when he's

already been found competent?

MR. ITAYIM: I'm – I'm requesting a second opinion, Your Honor, yes.

THE COURT: I don't understand why you would stipulate to the first

evaluation.

Perry County, Case No. 20-CA-00005 11

MR. ITAYIM: The results of the first evaluation, we are – we've stipulated

to. But we can request a second opinion even if we have agreed – even if

we've agreed to stipulate to that document.

THE COURT: And you've agreed that he's competent?

MR. ITAYIM: We – the – the Court deemed him competent. We just

stipulated to the document.

(T. 4-5). Trial counsel did not state they only stipulated to the admission of the document

into evidence pursuant to R.C. 2945.37(E).

{¶28} The trial court and trial counsel next discussed his basis for requesting a

second evaluation:

THE COURT: And you want that done at State expense. So what – what is

the – what is the reason for the request for a second evaluation?

MR. ITAYIM: It's based on my conversations with my client.

(T. 5). Trial counsel questioned the evaluation done by the Forensic Diagnostic Center:

MR. ITAYIM: Is that they're stating one thing and my conversations with my

client ongoing raises additional concerns, and that's why I'm requesting the

second opinion. * * * The end result is what I'm – I'm questioning based on

their individual evaluations on their testing.

THE COURT: Have you talked to the doctors, questioned them about their

evaluation?

MR. ITAYIM: No, Your Honor. I'm just familiar with the Forensic Diagnostic

Center. * * * I'm familiar with Dr. – Dr. Davis from Columbus. * * * I found

him to be extremely – extremely competent. His reports are more thorough.

Perry County, Case No. 20-CA-00005 12

The analysis is different. And based on that, I think he'd be a more

appropriate individual to – to give a second opinion because he does do

different – different testing.

(T. 5-6).

{¶29} On this record, we cannot say the trial court abused its discretion in denying

a second competency evaluation of McConnell at public expense. When the trial court

ordered the Forensic Diagnostic Center to complete the evaluation of McConnell's

competency, trial counsel did not object to the trial court's selection of evaluator. At the

competency hearing, counsel for McConnell said they had reviewed the evaluations and

stipulated to the findings of McConnell's competency to stand trial. It did not appear from

the record that counsel was stipulating to the admission of the evaluation as evidence

under R.C. 2945.37(E).

{¶30} Trial counsel provided two reasons to the trial court for a second

competency evaluation: (1) his discussions with his client and (2) he was familiar with the

Forensic Diagnostic Center. He did not clarify at the hearing whether his familiarity with

the Forensic Diagnostic Center was negative or positive. He differentiated between the

evaluation completed by the Forensic Diagnostic Center and an evaluation done by Dr.

Davis as "different and more thorough.” Trial counsel admittedly did not question the

evaluators at the Forensic Diagnostic Center as to their methodology or analysis. A

different analysis does not automatically indicate a different conclusion. We do not find

the trial court abused its discretion to deny a second competency evaluation based on

the record in this case.

{¶31} McConnell's sole Assignment of Error is overruled.

The judgment of the Perry County Court of Common Pleas is affirmed.