Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
TRIAL NO. C-18CRB-12913
T. Deters, Hamilton County Prosecuting Attorney, and Sean M.
Donovan, Assistant Prosecuting Attorney, for
Sinclair, for Defendant-Appellant.
There is no question that a knowing, voluntary, and
intelligent plea assumes a baseline level of competence from
a defendant. This case involves primarily the parameters of a
trial court's discretion to evaluate that competence. For
the reasons that follow, we hold that the defendant in this
case was competent to enter her valid, no-contest plea, and
we affirm the trial court's judgment.
Based on her religious convictions, appellant Tina Wisler
does not believe that married couples should divorce, and
this is apparently a strongly imbedded tenet of her faith.
Her ex-husband, apparently feeling otherwise, eventually
obtained a divorce that Ms. Wisler has proven unable to
accept. Understandably, this has precipitated a number of
problems, and her ex-husband ultimately obtained a protective
order obligating her to stay away from him. Nevertheless, Ms.
Wisler has a penchant for violating that requirement, and the
case before us arose when she wandered onto the front lawn of
her ex-husband's home in violation of the prior
Facing an indictment for a misdemeanor violation of R.C.
2919.27, a day prior to the trial on this charge, her counsel
filed a motion for a competency evaluation. The next day, the
trial court denied this motion and accepted a plea of no
contest from Ms. Wisler. She received a sentence of 180 days
in the jail with credit for 20 days served. Ms. Wisler now
appeals, challenging the propriety of her plea and her
competency to enter into it.
Ms. Wisler's first assignment of error concerns whether
her no-contest plea satisfied all of the procedural and
substantive requirements for a plea. R.C. 2937.07 governs
"no contest" pleas in misdemeanor cases: "A
plea to a misdemeanor offense of 'no contest' or
words of similar import shall constitute an admission of the
truth of the facts alleged in the complaint and that the
judge or magistrate may make a finding of guilty or not
guilty from the explanation of circumstances of the
offense." No specific incantation is required; rather,
there must be some recitation of facts that, if true, would
support all the essential elements of a crime to reach a
guilty verdict. State v. Jenkins, 3d Dist. Hancock
Nos. 5-15-21, 5-15-22 and 5-15-23, 2016-Ohio-1428, ¶ 6.
"[A] court may make its finding from the explanation of
circumstances by the state." State v. Waddell,
71 Ohio St.3d 630, 631, 646 N.E.2d 821 (1995).
The Supreme Court of Ohio recently shed some light on this
statute: "the explanation-of-circumstances requirement
is best understood as providing a level of procedural
protection to the defendant." City of Girard v.
Giordano, 155 Ohio St.3d 470, 2018-Ohio-5024, 122 N.E.3d
151, ¶ 20. It is not, however, a barometer of the
sufficiency of the evidence. Id. at ¶ 16
(holding that "reversal for failure to comply with the
explanation-of-circumstances requirement" is not the
equivalent of "acquittal based on insufficiency of the
At issue here is a violation of R.C. 2919.27(A)(2): "(A)
No person shall recklessly violate the terms of any of the
following: * * * (2) A protection order issued pursuant to
section 2151.34, 2903.213, or 2903.214 of the Revised
Code[.]" Ms. Wisler insists, first, that she did not
actually admit or concede the facts read into the record
pursuant to that charge. Second, she faults the absence of
the protection order from the record, and therefore, reasons
that the explanation-of-circumstances could not suffice to
support a finding of guilt.
As to her first argument, Ms. Wisler admitted at the hearing
that she knew there was a protection order and that she was
not supposed to be at her ex-husband's home. She did not
dispute her presence at his house in contravention of the
order. Rather, on appeal, she seizes on a statement where she
responded "[a]nd that's not true" as evidence
that she contested the predicate facts. But that rests on a
myopic reading of her answer, and one divorced from context.
She made that statement in response to the following part of
the state's description of the incident: "She stated
[to the responding officer] that she was trying to talk to
her husband and that God or the courts could not keep her
from her husband." In context (as reinforced by
subsequent back-and-forth with the court), her statement
related to this extraneous point about her conversation with
the responding officer and not to the factual basis for the
misdemeanor offense. Even Ms. Wisler's trial counsel
acknowledged as much on the record. Therefore, this statement
cannot unravel the plea.
In her second argument, Ms. Wisler effectively asks the court
to impose an evidentiary requirement in a no-contest-plea
scenario. But this would go beyond what is contemplated by
R.C. 2937.07, as explained by the Giordano decision.
The essential elements of R.C. 2919.27(A)(2) are that an
accused recklessly violated a valid protection order. The
state recited when the incident occurred, the existence of a
valid protection order, and that police officers found Ms.
Wisler sitting on her ex-husband's lawn. This satisfies
the threshold of procedural protection required by R.C.
2937.07, and the state did not need to produce the protection
order in the absence of any dispute as to its existence or
terms. Neither issue raised by Ms. Wisler has merit, and we
overrule her first assignment of error.
Ms. Wisler's second and third assignments of error
concern her mental state vis-à-vis her plea. She
styles her second assignment of error as related to a
"competency hearing," but the motion itself and the
discussion of the motion in the transcript reflect a motion
for a "competency evaluation." These concepts are
distinct and addressed by different Revised Code sections.
R.C. 2945.37(B) deals with competency hearings and provides
that, if raised before trial, "the court shall hold a
hearing." The code section dealing with competency
evaluations, R.C. 2945.371, states, by contrast: "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 mental condition * *
*." (Emphasis added.) In short, this provision grants a
measure of discretion to the trial court. See State v.
Bailey, 90 Ohio App.3d 58, 67, 627 N.E.2d 1078 (11th
Dist.1992) ("[T]he use of the word 'may'
supports the conclusion that a trial court is not required to
order an evaluation * * * every time [the defendant] raises
the issue. Instead, the wording of the statute implies that
the order of an examination is a matter within the discretion
of the trial court."); State v. Stahl, 2d Dist.
Greene No. 2004-CA-69, 2005-Ohio-2239, ¶ 19 (same);
State v. Nisley, 3d Dist. Hancock No. 5-13-25,
2014-Ohio-1137, ¶ 28 (same).
In most instances, a competency evaluation would flow, if at
all, from an initial determination after a hearing that a
defendant might be incompetent. A defendant is presumed
competent and carries the burden (by a preponderance of the
evidence) to show otherwise. R.C. 2945.37(G); Nisley
at ¶ 28 ("[I]t is the defendant's burden to
prove * * * that he is incompetent to stand trial."). A
competency hearing need not display a particular level of
formality or rigidity of procedure. See, e.g.,
Bailey at 66 (trial court "interviewed appellant,
and then decided that an examination was not needed.");
State v. Dye, 5th Dist. Licking No. 99-CA-2, 1999 WL
770619, *3 (Sept. 2, 1999) (interview with defendant
sufficient for competency determination). The standard of
appellate review on competency determinations is
"whether the trial court's ...