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Date: 06-04-2021
Case Style:
STATE OF OHIO v. JERRY LEE MCCAIN
Case Number: 2020-CA-16
Judge: Michael L. Tucker
Court: IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
Plaintiff's Attorney: JANE A. NAPIER, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, Appellate Division
Defendant's Attorney:
Description:
Dayton, Ohio - Criminal defense attorney represented Jerry Lee McCain with an petty theft, and two counts of breaking and entering, wandr aggravated possession of drugs charges.
{¶ 2} While serving two community control sanction (CCS) sentences in
Champaign C.P. Nos. 2017-CR-260 and 2018-CR-232, McCain was indicted in two
additional cases. In Case No. 2017-CR-260, McCain had been convicted of petty theft,
a first-degree misdemeanor, and two counts of breaking and entering, fifth-degree
felonies; in Case No. 2018-CR-232, McCain had been convicted of aggravated
possession of drugs, a fifth-degree felony. The additional indictments were assigned
Champaign C.P. Nos. 2020-CR-26 and 2020-CR-45. In Case No. 2020-CR-26, McCain
was indicted on three counts of aggravated possession of drugs, all fifth-degree felonies,
and one count of illegal use or possession of drug paraphernalia, a fourth-degree
misdemeanor. In Case No. 2020-CR-45, McCain was indicted on two counts of forgery,
both fifth-degree felonies, and one count of aggravated possession of drugs, a fifthdegree felony. As a result of the new indictments, the State initiated CCS revocation
proceedings in Case Nos. 2017-CR-260 and 2018-CR-232.
{¶ 3} In Case No. 2020-CR-26, the Champaign County Grand Jury was ready to
consider a charge of aggravated possession of drugs, a third-degree felony. This
charge, it seems, would have been based upon the aggregate weight of the drugs
(methamphetamine) involved in the already-indicted aggravated possession counts. But -3-
before the charge was presented to the grand jury, the parties reached a plea agreement
as follows: (1) in Case No. 2020-CR-26, McCain pleaded guilty through a Bill of
Information to aggravated possession of drugs, a third-degree felony, and the remaining
counts were dismissed; (2) in Case No. 2020-CR-45, McCain pleaded guilty to forgery, a
fifth-degree felony, and the remaining counts were dismissed, and (3) McCain admitted
to CCS violations in Case Nos. 2017-CR-260 and 2018-CR-232. As part of the plea
agreement, the State requested imposition of a 36-month prison term in Case No. 2020-
CR-26, to be served concurrently to any prison terms imposed in Case Nos. 2020-CR45, 2017-CR-260, and 2018-CR-232. The trial court ultimately imposed an aggregate
prison term of 62 months. This appeal followed.
Analysis
{¶ 4} McCain’s sole assignment of error is as follows:
[MCCAIN’S] PLEA WAS NOT KNOWING AND INTELLIGENT.
{¶ 5} McCain suggests that his guilty pleas were not knowing and intelligent
because the Crim.R. 11 plea colloquy demonstrated he did not understand the
constitutional rights he was waiving. On this record, we cannot agree with this
conclusion.
{¶ 6} Due process requires that a guilty plea be knowing, intelligent, and voluntary.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Clark,
119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; State v. Hill, 2d Dist. Clark
No. 2019-CA-11, 2020-Ohio-7, ¶ 7. A trial court’s “[c]ompliance with Crim.R. 11(C)
ensures that a plea meets this constitutional mandate.” Hill at ¶ 7, citing State v. Cole,
2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12. “Strict compliance with the -4-
Crim.R. 11(C)(2)(a) constitutional advisements is necessary to establish that a plea is
consistent with due process.” Id., citing State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio5132, 124 N.E.3d 766, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 261, ¶ 18.
{¶ 7} A defendant’s competence to knowingly and intelligently enter a guilty plea
is gauged by the same standard used to determine whether a defendant is competent to
stand trial. State v. Simpson, 2016-Ohio-1267, 61 N.E.3d 899, ¶ 11 (2d Dist.), citing
Godinez v. Moran, 509 U.S. 389, 397-398, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). A
defendant is presumed competent to stand trial, but, of course, this presumption is subject
to rebuttal. State v. Schooler, 2018-Ohio-3295, 118 N.E.3d 467, ¶ 26 (2d Dist.). Based
upon this presumption, it is the defendant’s burden to establish that he is not competent
to stand trial or plead guilty. Id. at ¶ 29, citing State v. Ferguson, 2018-Ohio-987, 108
N.E.3d 1161, ¶ 20 (2d Dist.), citing State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783,
804 N.E.2d 1, ¶ 28. R.C. 2945.37(G) states the following regarding the findings required
to establish a defendant’s incompetency:
* * * 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 defendant incompetent to stand trial * * *.
Thus, “[t]he test for determining whether a defendant is competent * * * is whether he * * *
has sufficient present ability to consult with * * * his lawyer with a reasonable degree of
rational understanding of the proceedings [pending] against him * * *.” (Citations -5-
omitted.) Schooler at ¶ 29. In the context of a plea, the test, as appropriately modified,
is whether the defendant has the ability to consult with his lawyer, whether he has a
reasonable and rational factual understanding of the charges to which he is pleading
guilty, and whether he has a reasonable and rational understanding of the rights he is
waiving by pleading guilty. State v. Zachery, 5th Dist. Stark No. 2004-CA-91, 2004-Ohio6821, ¶ 20.
{¶ 8} Factors often considered when determining a defendant’s competence
include doubts articulated by counsel, a defendant’s “irrational behavior,” a “defendant’s
demeanor,” and any “prior medical opinion relating to competence * * *.” Schooler at
¶ 27, quoting State v. Rubenstein, 40 Ohio App.3d 57, 60-61, 531 N.E.2d 732 (8th
Dist.1987). See also Ferguson at ¶ 18.
{¶ 9} A defendant’s low IQ or even a mild mental disability does not “necessarily”
compel the conclusion the defendant is “incapable of entering a valid plea.” Simpson at
¶ 10. See also Zachery at ¶ 22, citing Atkins v. Virginia, 536 U.S. 304, 306, 122 S.Ct.
2242, 153 L.Ed.2d 335; State v. Dooley, 3d Dist. Allen No. 1-10-41, 2010-Ohio-6260,
¶ 21.
{¶ 10} Turning to the pending case, we begin the discussion by noting the
following. First, McCain does not – nor could he – assert that the trial court did not
comply with the Crim.R. 11 plea requirements. Second, trial counsel did not suggest that
he doubted McCain’s competence, the record does not suggest that McCain engaged in
irrational behavior during the plea hearing, and there is no medical opinion casting doubt
upon McCain’s competence. Third, the trial court was quite familiar with McCain,
including from the proceedings in Case Nos. 2017-CR-260 and 2018-CR-232, in which -6-
McCain entered guilty pleas. Finally, McCain does not argue that he could not
reasonably consult with counsel or that he did not have a reasonable understanding of
the proceedings pending against him. Rather, McCain’s assertion is very narrow; it is
simply that the Crim.R. 11 colloquy did not support the conclusion that he understood the
constitutional rights he was waiving by pleading guilty.
{¶ 11} The constitutional rights at issue were those set forth in Crim.R. 11(C)(2)(c):
the right to a jury trial during which the State had the obligation to establish guilt beyond
a reasonable doubt; the right of confrontation, the right against self-incrimination, and the
right to compulsory process. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164
N.E.3d 286, ¶ 14.
{¶ 12} The parties agree, and the record reflects, that McCain, who was age 61 on
the date of the plea hearing, had developmental and intellectual disabilities. According
to the presentence investigation report, these disabilities were apparently congenital and
“manifest[ed] * * * in problems with impulse control, reasoning, memory, judgment, and
following social norms.” The record also reflects that McCain had a significant criminal
history dating back to 1977 and that he has been sentenced to prison on at least four
previous occasions. Significantly, the record does not reflect that McCain had ever
previously been found incompetent to stand trial or to enter a guilty plea.
{¶ 13} The trial court, being well aware of McCain’s intellectual limitations, was
very thorough when explaining and ensuring that McCain understood the constitutional
rights he was waiving. This is not to suggest that the plea hearing was easy or seamless.
But the following exchanges, which occurred toward the end of the plea hearing, convince
us that McCain did understand the constitutional rights he was waiving by pleading guilty: -7-
THE COURT: We’ve gone over your Constitutional rights. There are five
of them. We’ve talked about them 15 times.1 After looking – after hearing
your answers, as well as looking at your facial expressions, I believe that
you understand what I’m saying to you.
I believe that you’re having trouble explaining it back to me. And the
record should reflect that Defendant has a speech impediment that is not
tied to intellectual disability. But, rather, the inability to form words in his
mouth. So for transcript purposes, it will be difficulty for the court reporter
who has not worked with Mr. McCain over the years to perhaps understand
some of the things he’s saying.
But I believe you understand, Mr. McCain, what I have explained to
you. And I believe you have done a fairly good job with the evidence. But
I want to go through it one more time so that I’m convinced that you
understand the rights you’re giving up, okay?
THE WITNESS: Yes.
THE COURT: You give up the right to a jury trial. Tell me what a jury trial
is?
THE WITNESS: You take 12 people to find me guilty beyond a reasonable
doubt. It takes one to find me not guilty.
THE COURT: That’s perfect. For people who accuse you of crime, what
are you able to do with those people? People who want to come in here
1 This is an exaggeration, but, as noted, the record reflects the trial court’s careful and
patient explanation of each constitutional right. -8-
and say Jerry McCain committed a crime. What are you able to do with
them?
THE WITNESS: Have to subpoena them into court beyond a reasonable
doubt.
THE COURT: Yes, you can subpoena them into court. But are you able to
ask those people questions?
THE WITNESS: Yes, if I subpoena them into court.
THE COURT: Well, if the Prosecutor subpoenas them into court, if they are
the State’s witnesses, are you able to ask the Prosecutor’s witnesses
questions?
THE WITNESS: Yes.
THE COURT: That’s right. And you give up that right by pleading guilty.
Do you understand that?
THE WITNESS: Yes.
THE COURT: So if you plead guilty, do the police have to come in here and
testify? If you plead guilty now?
THE WITNESS: No.
THE COURT: Does the bank need to come in here and testify if you plead
guilty?
THE WITNESS: Nope.
THE COURT: Okay. What happens if you have witnesses that help Jerry
McCain? How do you get those witnesses here?
THE WITNESS: Got to subpoena them into court. -9-
THE COURT: And do you have the right to have witnesses come and testify
for you?
THE WITNESS: Yes.
THE COURT: All right. Do you remember what that level of proof is that
the Prosecutor has to show the jury to find you guilty? What that level of
proof is called?
THE WITNESS: The high level.
THE COURT: Yes. The high level. Do you remember what that is called
specifically? Proof beyond a reasonable doubt.
THE WITNESS: Proof beyond a reasonable doubt.
THE COURT: Do you remember that?
THE WITNESS: Yes.
THE COURT: And for probation cases it is lower. It is a preponderance of
the evidence. Do you understand this?
THE WITNESS: Yes.
THE COURT: What happens if the Prosecutor does not meet that level of
proof in either case? What happens then?
THE WITNESS: I’m found not guilty.
THE COURT: * * * And, last, if the Prosecutor is presenting his testimony
and he wants to force Jerry McCain to testify, can he force you to testify?
THE WITNESS: No.
THE COURT: Why’s that?
THE WITNESS: He has to prove me guilty. -10-
THE COURT: Well, he can’t force you to take the stand if you don’t want to.
Do you understand that?
THE WITNESS: Yes.
THE COURT: So can the Prosecutor force you to take the stand?
THE WITNESS: No.
THE COURT: Do you understand that by pleading guilty you give up that
right?
THE WITNESS: Yes.
* * *
Sentencing Transcript p. 64-68.
{¶ 14} Given this record, and recognizing the trial court’s history with McCain and
its ability to personally assess McCain’s level of understanding, the trial court did not err
in its conclusion that McCain understood the constitutional rights he waived by pleading
guilty. Thus, we cannot conclude that McCain’s guilty pleas were less than knowing and
intelligent. McCain’s sole assignment of error is overruled.
Outcome: The judgments of the Champaign County Common Pleas Court are
affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: