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State v. Shine

Court of Appeals of Ohio, Seventh District, Mahoning

June 21, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
DORINA SHINE, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 11 CR 330

          Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney Plaintiff-Appellee

          Atty. Edward A. Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown, Ohio 44503, for Defendant-Appellant.

          BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

          OPINION AND JUDGMENT ENTRY

          WAITE, J.

         {¶1} On June 15, 2016, Appellant Dorina Shine was convicted of one count of felonious assault in violation of R.C. 2903.11(A)(1), (D), a felony of the second degree and three counts of felonious assault, in violation of R.C. 2903.11(A)(2), (D), felonies of the second degree. On July 22, 2016, Appellant was sentenced to a four-year prison term. The convictions stem from an incident that occurred at the T.G.I. Friday's restaurant in Boardman Township, Ohio on March 23, 2011.

         {¶2} Appellant timely raises three assignments of error on appeal. First, she alleges the trial court abused its discretion in admitting a report regarding Appellant's competency to stand trial without a witness being available to testify. Second, Appellant contends the trial court abused its discretion in finding Appellant competent to stand trial after the February 10, 2014 competency hearing because the judge considered the testimony of only one of two expert witnesses. Lastly, Appellant contends the trial court erred in failing to hold another competency hearing when the issue of competency was raised on the day of trial. Based on the following, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶3} On March 23, 2011, after smoking marijuana and drinking alcohol, Appellant entered the T.G.I. Friday's restaurant in Boardman Township, Ohio. Appellant approached the bar and asked for food. When she was told she would have to sit and place an order, Appellant became enraged and began shouting and berating a bartender and other employees. Appellant also began picking up bottles from the bar and throwing them at individuals. A customer approached and attempted, along with restaurant employees, to restrain Appellant. Appellant subsequently fractured the customer's skull with a bottle.

         {¶4} On March 31, 2011, Appellant was indicted on one count of felonious assault in violation of R.C. 2903.11(A)(1), (D), a felony of the second degree and three counts of felonious assault in violation of R.C. 2903.11(A)(2), (D), felonies of the second degree. Appellant entered pleas of not guilty and not guilty by reason of insanity.

         {¶5} Appellant filed a suggestion of incompetence to stand trial on June 17, 2013. The trial court ordered an evaluation and stayed all proceedings pending the result. Dr. Thomas Gazley ("Gazley") performed the first evaluation of Appellant and issued a report opining that Appellant was incompetent to stand trial. The state requested a second evaluation, which was granted by the trial court. The second evaluation was conducted by Dr. Brian Welsh ("Welsh"). In a report issued by Welsh, he concluded that Appellant was competent to stand trial. A competency hearing was held on February 10, 2014. Testimony was provided by both Gazley and Welsh. Appellant's trial counsel also made a proffer to the court on the issue of Appellant's competency. The trial court subsequently issued a judgment entry determining that Appellant was competent to stand trial. Appellant filed an appeal to this Court. State v. Shine, 7th Dist. No. 14 MA 36 (June 13, 2014). In addition to being untimely, this Court dismissed the appeal, as an order finding a defendant competent to stand trial is not a final order pursuant to R.C. 2505.02. Id.

         {¶6} Appellant subsequently filed a motion for findings of fact and conclusions of law in the trial court regarding the trial court's competency finding. On December 2, 2014, the trial court filed a judgment entry incorporating the findings of fact and conclusions of law. Included in this entry was a finding that testimony established that the claimed altered mental state on the date of the charged offense was self-induced by Appellant, because she voluntarily smoked marijuana and drank alcohol immediately prior to engaging in the conduct alleged in the indictment. Appellant did not appeal that entry.

         {¶7} The parties appeared for a pretrial conference on April 20, 2015. The state indicated that Crim.R. 11 negotiations had been taking place and that a final Crim.R. 11 plea offer had been made to Appellant. At the hearing, trial counsel requested a moment to confer with Appellant. On returning to the record, trial counsel explained that he had an opportunity to share the state's proposal with Appellant but that she rejected it. Appellant verbally confirmed her rejection of the Crim.R. 11 offer with the trial court. Trial counsel again addressed the issue of Appellant's competency and requested another competency hearing. Counsel noted that Appellant refused to confer with him about her trial testimony. He stated that he was unsure whether her unwillingness stemmed from her lack of desire or her inability to cooperate. The state objected to the request based on the two prior competency evaluations of Appellant. Recognizing that the request was being made before trial, the trial court ordered another competency evaluation of Appellant with a psychologist chosen by both parties.

         {¶8} A third evaluation of Appellant was performed on July 9, 2015, by Summit Psychological Associates ("Summit"). The evaluation was conducted by Aviva Moster and signed off on by James A. Orlando, Ph.D. ("Orlando"). The report from Summit concluded that Appellant was competent to stand trial.

         {¶9} On October 5, 2015, Appellant's trial counsel filed a motion for an appropriation of funds regarding the Summit evaluation. Trial counsel sought funds to have the psychologist who had performed the third evaluation appear in court to testify. Orlando had informed trial counsel that he would not appear to testify unless compensated, and Appellant's indigency had been established.

         {¶10} A second competency hearing was held on October 14, 2015. The trial court had not yet ruled on counsel's motion for the appropriation of funds. At the hearing, counsel reiterated his motion for appropriation of funds in order to have Orlando appear to testify about his evaluation of Appellant's competency. Counsel also discussed the portions of the Summit competency evaluation that appeared to warrant examination under oath although the report ultimately concluded Appellant was competent to stand trial. The trial court noted that Appellant had been evaluated multiple times and that two other experts had previously testified as to her competency. The court also addressed the Summit report, highlighting that it concluded that Appellant was able to understand the legal process and her rights in the process, and was capable of communicating effectively with her attorney. Moreover, the court noted that the Summit report concluded with reasonable scientific certainty that Appellant was competent to stand trial. The trial court stated that it was "satisfied---takes judicial notice, has requested and received, to my satisfaction, a certified report directly to the court." (10/14/15 Tr., p. 12.) The judge stated that he read the report and that it was consistent with previous reports indicating that Appellant was competent to stand trial. The trial court concluded that to grant the request for appropriation of funds would be an unnecessary burden and "of no value." (10/14/15 Tr., p. 12.) At the hearing, the court found that Appellant was competent and ordered a trial date be set in the matter. The court memorialized those findings in a judgment entry dated October 23, 2015. Appellant filed a second appeal with this Court. State v. Shine, 7th Dist. No. 15 MA 0210, 2016-Ohio-1445.

         {¶11} Appellant argued on appeal that a judgment entry finding a criminal defendant competent to stand trial is a final, appealable order under the Supreme Court's decision in State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23. In Anderson, the Ohio Supreme Court held that an order which denied a motion to dismiss on double jeopardy grounds is a final, appealable order. It concluded a criminal defendant would not be afforded a meaningful review of an adverse decision because the double jeopardy clause not only serves as a protection against being punished twice for the same offense but also protects against being tried twice for the same offense. We found Appellant's Anderson argument unpersuasive and ruled that an order finding a criminal defendant competent to stand trial did not implicate double jeopardy considerations. Appellant also argued that a conviction of a defendant not legally competent to stand trial has due process implications. Appellant relied on cases where the criminal defendant was never afforded an opportunity to raise the issue of competency before trial. These cases in no way held that a criminal defendant has a right to immediately appeal a trial court's competency finding. We concluded that R.C. 2945.37 and R.C. 2945.371 set forth a comprehensive procedure for a trial court to follow if a criminal defendant's competency is at issue and that Appellant's due process rights were adequately protected. We noted that Appellant was afforded multiple competency evaluations and hearings, and that the trial court had issued findings of fact and conclusions of law in the matter. We dismissed this second appeal, again concluding that a competency determination by the trial court is not a final, appealable order because a criminal defendant is "afforded a meaningful and effective remedy by way of appeal" after the entire matter is resolved in the trial court. State v. Shine, 7th Dist. No. 15 MA 0210, 2016-Ohio-1445, ¶ 9.

         {¶12} The case proceeded to a jury trial on June 13, 2016. The state produced a number of witnesses who each gave similar accounts of Appellant's behavior after entering the restaurant: that she become enraged and attacked a number of people with liquor bottles. Appellant testified in her own defense, but stated that she had no clear recollection of the night's events. The jury found Appellant guilty on all charges and the court sentenced Appellant to a four-year prison term on the four counts of felonious assault. ...


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