State v. Muncie

[This decision has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. MUNCIE, APPELLANT.
                       [Cite as State v. Muncie, 

.]
Appellate procedure—Final orders—R.C. 2505.02(A)(3) and (B)(4), construed—
        Criminal procedure—Petition for forced medication under R.C. 2945.38
        is a “provisional remedy” ancillary to the criminal action against an
        incompetent defendant—Trial court’s order to forcibly medicate an
        incompetent defendant with psychotropic drugs in an effort to restore the
        defendant to competency is a final and appealable order.
       (No. 00-942—Submitted February 6, 2001—Decided May 23, 2001.)
   APPEAL from the Court of Appeals for Clermont County, No. CA99-07-076.
                                  __________________
                               SYLLABUS OF THE COURT
1. A petition for forced medication under R.C. 2945.38 is a “provisional remedy”
        ancillary to the criminal action undertaken by the state against an
        incompetent defendant. (R.C. 2505.02[A][3], construed.)
2. When a trial court orders an incompetent defendant to be forcibly medicated
        with psychotropic drugs in an effort to restore the defendant to competency,
        that order is final and appealable. (R.C. 2505.02[B][4], construed.)
                                  __________________
        COOK, J.
        {¶ 1} The court of appeals in this case determined that it lacked jurisdiction
to review a “Forced Medication Order” that had been issued by the trial court in an
effort to restore appellant’s competency to stand trial. The court of appeals
dismissed appellant’s appeal from that order, deciding that it was not final and
appealable under R.C. 2505.02. Because we hold that the trial court’s forced
medication order was indeed a “final order” under R.C. 2505.02(B)(4), we reverse.
                                   SUPREME COURT OF OHIO




                                         I. Background
         {¶ 2} After allegedly mailing a threatening letter to a Clermont County
Municipal Court judge, appellant Donald Muncie was arrested and indicted for
retaliation in violation of R.C. 2921.05(A). The trial court held a competency
hearing on June 10, 1999. In an amended entry filed June 28, 1999, the trial court
found Muncie incompetent to stand trial and committed him to the Twin Valley
Psychiatric Center (“Twin Valley”) in Montgomery County for restorative
treatment.     In a later entry, the trial court indicated that it had issued this
commitment order under R.C. 2945.38.1
         {¶ 3} Craig L. Ross, Jr., the Legal Assurance Administrator at Twin Valley,
wrote a letter to the trial court dated July 12, 1999, requesting permission to forcibly
medicate Muncie. In this letter, Ross stated that Muncie had not cooperated with
treatment efforts at Twin Valley and was refusing to take his prescribed medication.
Ross indicated that, according to Muncie’s treating psychiatrist, Muncie could be
restored to competency if he received five to thirty milligrams of Olanzapine per
day, eight to sixty-four milligrams of Trilafon per day, one to ten milligrams of
Ativan per day, and two hundred fifty to four thousand milligrams of Depakote per
day. According to amicus curiae Glenn Weaver Institute of Law and Psychiatry



1. At the time the trial court committed Muncie, R.C. 2945.38(B) provided: “After taking into
consideration all relevant reports, information, and other evidence, the court shall order a defendant
who is found incompetent to stand trial to undergo treatment at a facility operated by the department
of mental health or the department of mental retardation and developmental disabilities, treatment
at a facility certified by either of those departments as being qualified to treat mental illness or
mental retardation, treatment at a public or private community mental health or mental retardation
facility, or private treatment by a psychiatrist or another mental health or mental retardation
professional. The order may restrict the defendant’s freedom of movement as the court considers
necessary.” 146 Ohio Laws, Part VI, 11192-11193. This court recently declared R.C. 2945.38, as
amended by Am.Sub.S.B. No. 285, unconstitutional in toto. See State v. Sullivan (2001), 

, 

, syllabus. The statute now in place after this court’s decision in Sullivan
requires the trial court, before ordering an incompetent defendant committed for restorative
treatment, to make a finding based on the evidence “as to whether there was a substantial probability
that, with treatment, the defendant would become competent to stand trial within one year.” 

, 

, citing former R.C. 2945.38(C), 146 Ohio Laws, Part VI, 10976-10977.




                                                  2
                                       January Term, 2001




(“Glenn Weaver”), Olanzapine and Trilafon are antipsychotic drugs, Ativan is a
sedative used to treat anxiety and insomnia, and Depakote is an anticonvulsant used
to control manic episodes associated with bipolar disorder. The state does not
dispute these characterizations of the drugs, which are supported by excerpts from
the Physician Desk Reference that Muncie attached as an exhibit to a supplemental
filing in the trial court.
         {¶ 4} Two days after receiving Ross’s petition for forced medication, the
trial court entered a “Forced Medication Order.” In this order, the court found that
“it is in the best interest of the Defendant, based upon the recommendation of his
treating psychiatrist, to be administered, forcibly if necessary,” the four drugs listed
in Ross’s July 12 letter.2 The court also authorized Twin Valley personnel to
forcibly medicate Muncie with any drugs necessary to ameliorate deleterious side
effects resulting from the administration of the four specified drugs. The court
mailed its forced medication order to the parties’ attorneys, attaching a letter from
the court dated July 14, 1999. In this letter, the trial judge indicated to counsel that
he had consulted with Ross at Twin Valley before issuing the forced medication



2. At the time the trial court issued its forced medication order in this case, R.C. 2945.38(B)
provided: “If the defendant is found incompetent to stand trial, if the chief clinical officer of the
hospital or facility, the managing officer of the institution, the director of the program, or the person
to which the defendant is committed determines that medication is necessary to restore the
defendant’s competency to stand trial, and if the defendant lacks the capacity to give informed
consent or refuses medication, the chief clinical officer, managing officer, director, or person to
which the defendant is committed may petition for, and the court may authorize, the involuntary
administration of medication.” (Emphasis added.). 146 Ohio Laws, Part VI, 11193. As noted in
footnote 1, supra, this court recently declared this version of R.C. 2945.38 unconstitutional in toto.
See Sullivan, 

, 

, syllabus. The commitment statute now in place
after Sullivan, though it expressly authorizes the continued administration of psychotropic
medication to competent defendants, does not contain the explicit provision for involuntary
administration of such medication to incompetent defendants just quoted from former R.C.
2945.38(B). R.C. 2945.38(F), 146 Ohio Laws, Part VI, 10978.. Because the question is not squarely
before us, and because the answer to the question is unnecessary to resolve the narrow procedural
issue presented in this appeal, we decline to decide whether the statutory commitment provisions
now in place after Sullivan authorize the involuntary administration of psychotropic medication to
incompetent defendants.




                                                   3
                              SUPREME COURT OF OHIO




order and that Ross had confirmed the court’s belief that no hearing was required
prior to issuing the order.
        {¶ 5} On July 16, Muncie filed a “Motion to Reconsider Order for Forced
Medication” in the common pleas court. In this motion, Muncie requested that the
court stay its forced medication order pending appeal, should his motion for
reconsideration be overruled.      The trial court overruled Muncie’s motion for
reconsideration and motion for stay. On July 28, Muncie appealed to the Clermont
County Court of Appeals.
        {¶ 6} Muncie filed a motion requesting the court of appeals to stay the trial
court’s forced medication order pending appeal. The state filed objections to this
motion and moved to dismiss Muncie’s appeal for lack of a final appealable order.
The court of appeals denied both Muncie’s requested stay and the state’s motion to
dismiss. The court of appeals declined to dismiss Muncie’s appeal for lack of
jurisdiction at that juncture, but permitted the state to raise the issue of appealability
again in its merit brief.
        {¶ 7} On January 11, 2000, after the parties had filed their merit briefs in
the court of appeals, the trial court found Muncie competent to stand trial. The trial
court ordered Muncie to remain hospitalized until trial and to continue taking his
medication. On February 2, Muncie entered a plea of no contest to the charge of
retaliation. On February 10, 2000, the trial court sentenced Muncie to five years of
community control. As components of this sentence, the trial court ordered Muncie
to complete the Tender Mercies Residential Program and to take all medications as
directed by his physician.
        {¶ 8} On April 4, 2000, the court of appeals unanimously dismissed
Muncie’s appeal for lack of a final appealable order. The court of appeals observed
that the trial court’s forced medication order, issued without a hearing, raised
significant due process concerns. Even so, the court of appeals concluded that the
forced medication order was not a final order for purposes of R.C. 2505.02(B), and




                                            4
                                      January Term, 2001




that it lacked jurisdiction “to legally resolve the important constitutional arguments
in appellant’s appeal.”
         {¶ 9} On September 20, 2000, this court allowed Muncie’s discretionary
appeal, but only as to Muncie’s first proposition of law—to determine whether an
order authorizing the forced medication of an incompetent defendant is a final
appealable order. State v. Muncie (2000), 

, 

.3
                                           II. Analysis
         {¶ 10} R.C. 2953.02 authorizes appellate courts to review, in criminal
cases, “the judgment or final order” of an inferior court. This court has previously
determined that, in order to decide whether an order issued by a trial court in a
criminal proceeding is a reviewable final order, appellate courts should apply the
definitions of “final order” contained in R.C. 2505.02. See State ex rel. Leis v.
Kraft (1984), 

, 10 OBR 237, 239, 

. In
1997, this court invited the General Assembly to consider modifying R.C. 2505.02.
See Walters v. The Enrichment Ctr. of Wishing Well, Inc. (1997), 

, 

, 894, fn. 2. The following year, the General
Assembly amended the statute. See Sub.H.B. No. 394, 147 Ohio Laws, Part II,
3277-3278. Applying our precedent and amended R.C. 2505.02, the Clermont
County Court of Appeals decided that the forced medication order issued by the
trial court in this case was not a final and appealable order. For the reasons that
follow, we disagree.




3. The second, third, and fourth propositions of law contained in Muncie’s Memorandum in Support
of Jurisdiction asserted facial and as-applied constitutional challenges to the version of R.C. 2945.38
that this court struck down in toto in State v. 

                                                  5
                             SUPREME COURT OF OHIO




                                    State v. Hunt
       {¶ 11} The court of appeals noted that, in State v. Hunt (1976), 

, 

, 

, syllabus, this court held that an order
finding a defendant incompetent and committing him to a state hospital under R.C.
2945.38 was not a final appealable order. Without elaboration, the court of appeals
decided: “If a finding of competence or incompetence is not a final appealable
order, it logically follows that an order of forced medication in an attempt to restore
competency is not a final appealable order.”
       {¶ 12} We are unpersuaded by the court of appeals’ analogy to Hunt. A
commitment order and forced medication order are superficially similar, in that
both orders arise from proceedings under R.C. 2945.38 and implicate an
incompetent defendant’s liberty interest and right to due process of law. See
Lagway v. Dallman (N.D.Ohio 1992), 

 (noting that
R.C. 2945.37 and 2945.38 “create an expectation protected by the Due Process
Clause”); see, also, Riggins v. Nevada (1992), 

, 

, 

 (citing Washington v. Harper [1990], 

, 

, 

, for the proposition that an
individual’s interest in avoiding the involuntary administration of antipsychotic
drugs is protected under the Due Process Clause of the Fourteenth Amendment).
       {¶ 13} But the commitment order issued by the trial court in Hunt merely
directed authorities to transfer Hunt—an illiterate individual who suffered from
hearing and speech impairments—to an institution where his communication skills
could be improved. Hunt, 

, 

, 

.
Orders of forced medication, however, do not necessarily follow from orders of
commitment and are designed to do far more than merely restrict an incompetent
defendant’s freedom of movement. The United States Supreme Court has noted
that the forcible injection of antipsychotic medications into a nonconsenting
individual’s body represents a “particularly severe” interference with the interests




                                          6
                                     January Term, 2001




protected by the Due Process Clause. Riggins, 

, 

,

.           Orders authorizing the involuntary administration of
antipsychotic medications permit authorities to alter the cognitive processes
occurring in the committed defendant’s brain, against his or her will, using drugs
that carry with them the possibility of severe, debilitating, and/or permanent side
effects. 

, 

, 

; see, also, Steele
v. Hamilton Cty. Community Mental Health Bd. (2000), 

, 181-
182, 

 (noting that possible side effects of antipsychotic drugs
include Parkinsonian syndrome, akathisia, dystonia, and dyskinesia).4 Thus, even
if we were to assume for the sake of argument that our decision in Hunt retains any
viability following the General Assembly’s amendments to R.C. 2505.02—an issue
that we are not now called upon to decide—we would decline to adopt the court of
appeals’ direct analogy to that distinguishable case.
                                 Amended R.C. 2505.02(B)
         {¶ 14} The court of appeals correctly noted that our decision in Hunt
predated the General Assembly’s recent amendments to R.C. 2505.02.
Accordingly, the court of appeals went on to determine whether the trial court’s
forced medication order met any of the five definitions of “final order” in amended
R.C. 2505.02(B). That section now provides:
         “An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
         “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
         “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment;
         “(3) An order that vacates or sets aside a judgment or grants a new trial;

4. For a description of the symptoms associated with these conditions, see Steele, 90 Ohio St.3d at
182-183, 

.




                                                7
                                   SUPREME COURT OF OHIO




         “(4) An order that grants or denies a provisional remedy and to which both
of the following apply:
         “(a) The order in effect determines the action with respect to the provisional
remedy and prevents a judgment in the action in favor of the appealing party with
respect to the provisional remedy.
         “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims,
and parties in the action.
         “(5) An order that determines that an action may or may not be maintained
as a class action.”
         {¶ 15} The court of appeals held that the forced medication order issued by
the trial court in this case did not satisfy any of R.C. 2505.02(B)’s five definitions
of “final order.” In their arguments to this court, Muncie and amicus curiae Glenn
Weaver dispute that holding only as to one of the statute’s five definitions. They
maintain that the trial court’s forced medication order was indeed a final order
under R.C. 2505.02(B)(4). We agree, and limit the analysis that follows to the
definition of “final order” contained in R.C. 2505.02(B)(4).5
                       R.C. 2505.02(B)(4)—A Three-Step Analysis
         {¶ 16} As noted above, R.C. 2505.02(B)(4) now provides that an order is a
“final order” if it satisfies each part of a three-part test: (1) the order must either
grant or deny relief sought in a certain type of proceeding—a proceeding that the
General Assembly calls a “provisional remedy,” (2) the order must both determine
the action with respect to the provisional remedy and prevent a judgment in favor
of the appealing party with respect to the provisional remedy, and (3) the reviewing
court must decide that the party appealing from the order would not be afforded a
meaningful or effective remedy by an appeal following final judgment as to all

5. Accordingly, we expressly decline to pass on the court of appeals’ interpretation of the other four
definitions of “final order” that are contained in R.C. 2505.02(B).




                                                  8
                                        January Term, 2001




proceedings, issues, claims, and parties in the action. See, also, R.C. 2505.02(A)(3)
(defining “provisional remedy”).
         {¶ 17} Neither R.C. 2505.02(B)(4)’s three-part test nor the defined term
“provisional remedy” appeared in R.C. 2505.02 prior to the 1998 amendments. See
Sub.H.B. No. 394, 147 Ohio Laws Part II, 3277-3278. This court has not yet issued
an opinion applying these provisions.6 In this, our first opinion to apply the General
Assembly’s newly defined category of final orders, we begin with the axiomatic
principle that when the language of a statute is plain and unambiguous and conveys
a clear and definite meaning, there is no need for this court to apply the rules of
statutory interpretation. Symmes Twp. Bd. of Trustees v. Smyth (2000), 

, 

, 1061, citing Meeks v. Papadopulos (1980), 

, 

, 

. “Where a statute
is found to be subject to various interpretations, however, a court called upon to
interpret its provisions may invoke rules of statutory construction in order to arrive
at the legislative intent.” 

, 

, 

. If


6. R.C. 2505.02(B)(4) has appeared in only three decisions by this court thus far. See Boone v.
Vanliner Ins. Co. (2001), 

, 

; Stevens v. Ackman (2001), 

, 

; State v. Coffman (2001), 

, 

. Boone
concerned an appeal from an order compelling production of certain documents following an in
camera inspection. The Boone majority stated, “While the issue was apparently not raised by
appellant either in the court of appeals or in this court, we note in passing, and without deciding,
that there could be a question of whether this case, involving solely a discovery issue, met the
requirements for a final appealable order as set forth in R.C. 2505.02(B)(4) and, in particular,
(B)(4)(b).” Boone, 91 Ohio St.3d at 211, 

. In Stevens, R.C. 2505.02(B)(4)
appeared in this court’s recitation of that case’s procedural history, for one of the parties in that case
had argued that this subsection gave the court of appeals jurisdiction over an order denying a
political subdivision’s alleged immunity under R.C. Chapter 2744. Id., 91 Ohio St.3d at 184, 743
N.E.2d at 903. The Stevens majority did not analyze R.C. 2505.02(B)(4), for that opinion focused
on subsection (B)(2). See id. at 186-190, 743 N.E.2d at 905-907. After concluding that subsection
(B)(2) did not confer jurisdiction on the court of appeals, however, the Stevens majority also found
that “no other provision in R.C. 2505.02(B) supports the appeal.” Id. at 190, 743 N.E.2d at 907.
Finally, in Coffman, this court held that “[a] trial court’s order denying shock probation pursuant to
former R.C. 2947.061(B) is not a final appealable order.” Id. at the syllabus. R.C. 2505.02(B)(4)
was not analyzed in the majority opinion, but three dissenting justices asserted that the denial of a
motion for shock probation should be deemed final and appealable under R.C. 2505.02(B)(4). See
id. at 130, 

 (Douglas, J., dissenting).




                                                    9
                              SUPREME COURT OF OHIO




interpretation is necessary, the General Assembly has expressly provided that
courts should interpret statutory terms and phrases according to their common and
ordinary (or, if applicable, technical) usage. R.C. 1.42. With the foregoing
principles in mind, we analyze each step of R.C. 2505.02(B)(4)’s three-part test
below.
                               1. Provisional Remedy
         {¶ 18} To satisfy the definition of “final order” contained in R.C.
2505.02(B)(4), the order at issue must either grant or deny a provisional remedy.
To answer this question, the reviewing court must refer to the definition of
“provisional remedy” that the General Assembly provided and decide whether the
order at issue arose from “a proceeding ancillary to an action, including, but not
limited to, a proceeding for a preliminary injunction, attachment, discovery of
privileged matter, or suppression of evidence.” R.C. 2505.02(A)(3). In this case,
assessing the trial court’s forced medication order, the court of appeals decided,
“[n]or is this order a provisional remedy under R.C. 2505.02(B)(4) as defined by
R.C. 2505.02(A)(3), because it is not in the nature of a preliminary injunction,
discovery of privileged matter, or suppression of evidence.” We disagree with the
court of appeals’ interpretation of R.C. 2505.02(B)(4) and (A)(3) for several
reasons.
         {¶ 19} As a threshold matter, we note that the court of appeals’ statement,
“[n]or is this order a provisional remedy under R.C. 2505.02(B)(4)” is misleading,
for no “order” is ever a “provisional remedy” under the statute. The General
Assembly expressly defined a “provisional remedy” as a type of proceeding. R.C.
2505.02(A)(3). An “order” is thus properly understood as the mandate from the
trial court that grants or denies the particular relief at issue in that proceeding—not
as the provisional remedy itself. See R.C. 2505.02(B)(4).
         {¶ 20} The court of appeals also decided, without explanation, that the trial
court’s forced medication order was not “in the nature of a preliminary injunction,




                                          10
                                January Term, 2001




discovery of privileged matter, or suppression of evidence.” In its merit brief to
this court, the state urges us to adopt the court of appeals’ view that a forced
medication order does not resemble those orders that result from the proceedings
listed as examples in R.C. 2505.02(A)(3)’s definition of “provisional remedy.” We
conclude, however, that although a proceeding for forced medication under R.C.
2945.38 is not among those provisional remedies expressly enumerated in R.C.
2505.02(A)(3), such a proceeding nevertheless is a “provisional remedy” for
purposes of R.C. 2505.02(A)(3) and (B)(4).
       {¶ 21} Without citing supporting legal authority, the state asserts that “the
list of examples of provisional remedies in R.C. 2505.02(A)(3) is currently
nonexclusive only as to civil remedies.” Under the state’s interpretation of the
statutory definition of “provisional remedy,” then, even though the General
Assembly inserted the phrase “including, but not limited to” before its enumeration
of provisional remedies, a proceeding for the suppression of evidence is the only
criminal proceeding that could be a “provisional remedy” for purposes of R.C.
2505.02(B)(4).    The state’s view, however, is undermined by this court’s
recognition of the fact that the statutory phrase “including, but not limited to”
precedes a nonexhaustive list of examples. State v. Lozano (2001), 

, 

; cf. Boedeker v. Rogers (2000), 

, ___ N.E.2d ___ (noting that by its express terms, the list of provisional remedies
in R.C. 2505.02[A][3] is “illustrative and not exhaustive”).
       {¶ 22} The phrase “proceeding ancillary to an action,” which appears in
R.C. 2505.02(A)(3) just before the enumeration of certain provisional remedies, is
itself undefined—and the parties here disagree on its intended meaning and scope.
According to the state, “A narrow definition of the term ‘ancillary’ in R.C.
2505.02(A)(3) must be applied” to limit pretrial appeals in criminal cases
adequately. Muncie and Glenn Weaver, on the other hand, take a broader view.
Glenn Weaver quotes a decision from the Marion County Court of Appeals for the




                                         11
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proposition that “[a]n ancillary proceeding is one that is attendant upon or aids
another proceeding.” Bishop v. Dresser Industries (1999), 

, 

. For the following reasons, we agree with Muncie and
Glenn Weaver.
        {¶ 23} We disagree with the manner in which the state seeks to apply this
court’s precedent to support its narrow interpretation of R.C. 2505.02(A)(3). The
state relies on our decision in Bernbaum v. Silverstein (1980), 

,

, 

, as support for its view. According to the state,
this court observed in Bernbaum that in the criminal context “only rulings related
to suppression of evidence and dismissal for double jeopardy [are] immediately
appealable.” (Emphasis added.) But our Bernbaum case, which predated the
General Assembly’s adoption of the current definition of “provisional remedy” by
nearly two decades, said no such thing. In Bernbaum, which was a civil case
concerning “special proceedings,” the sole issue before this court was whether an
order overruling a motion to disqualify counsel was a final order. 

, 16
O.O.3d at 462, 

. Though this court noted in Bernbaum that orders
resulting from proceedings on motions to suppress evidence and motions to dismiss
on double jeopardy grounds had previously been deemed final orders, the
Bernbaum court never stated that such orders were the only final orders that could
arise before final judgment in a criminal proceeding.7 See 

, 16 O.O.3d at
462-463, 

.
        {¶ 24} We agree, instead, with Glenn Weaver and the Bishop court that for
purposes of R.C. 2505.02(A)(3)’s definition, “[a]n ancillary proceeding is one that
is attendant upon or aids another proceeding.” Bishop, 

. We also note that the case relied on by this court in Bernbaum regarding the final appealability
status of orders resulting from proceedings on motions to dismiss on double jeopardy grounds was
later overruled. See Bernbaum, 

, 

, 

, citing
State v. Thomas (1980), 

, 

, 

, overruled by State v.
Crago (1990), 

, 

, syllabus.




                                                12
                                January Term, 2001

. The Bishop court derived its definition of an ancillary
proceeding from Sorg v. Montgomery Ward & Co., Inc. (Dec. 17, 1998), Erie App.
No. E-98-057, unreported, 

. 

, 

.
As the Sorg court noted, Black’s Law Dictionary defined “ancillary” as “ ‘[a]iding;
attendant upon; describing a proceeding attendant upon or which aids another
proceeding considered as principal. Auxiliary or subordinate.’ ” Sorg, 

 at *3, citing Black’s Law Dictionary (5 Ed.1979) 78. See, also, Black’s
Law Dictionary (7 Ed.1999) 85 (defining “ancillary” as “[s]upplementary;
subordinate”).
       {¶ 25} The Bishop and Sorg courts’ understanding of the term “ancillary”
corresponds to the word’s common and ordinary meaning, as well as to this court’s
prior understanding of the term. See R.C. 1.42; see, also, Forest City Invest. Co. v.
Haas (1924), 

, 

. In Forest City, we noted
that the appointment of a receiver occurs in a proceeding “ancillary to the main
action.” (Emphasis added.) 

 The proceeding for the appointment of a receiver
aids the principal proceeding—the underlying litigation—for the receiver
conserves the interests of litigants with respect to property that is in the custody of
the court during the course of the principal litigation. 

, 

; see, also, Lincoln Tavern, Inc. v. Snader (1956), 

, 68, 

, 78, 

, 612 (noting that “an attachment is a provisional remedy;
an ancillary proceeding which must be appended to a principal action and whose
very validity must necessarily depend upon the validity of the commencement of
the principal action”).
       {¶ 26} Applying this common understanding of the statutory term
“ancillary” to the case at bar, we agree with Muncie and Glenn Weaver that a
petition for forced medication under R.C. 2945.38 is a “provisional remedy”
ancillary to the criminal action undertaken by the state against an incompetent
defendant. As Glenn Weaver notes, “the involuntary administration of medication




                                          13
                             SUPREME COURT OF OHIO




to an accused person for the purpose of restoring that person’s competency to face
criminal charges ‘aids’ in the resolution of the criminal proceeding and is ‘attendant
upon’ that proceeding.” Under the version of R.C. 2945.38 at issue in this case, a
court entertains a petition for forced medication only when the incompetent
defendant lacks the capacity to give informed consent or refuses medication that
the defendant’s treating physicians deem necessary for restoration to competency.
R.C. 2945.38(B).     Absent a provisional remedy in such cases—an ancillary
proceeding for forced medication—the incompetent defendant would likely never
be restored to the status of legal competency. And due process principles forbid
the state from subjecting a legally incompetent defendant to trial. State v. Berry
(1995), 

, 

.
       {¶ 27} We note that an appellate court’s determination that a particular
proceeding constitutes a “provisional remedy” is only one step of the analysis
required under R.C. 2505.02(B)(4). Not every order granting or denying relief
sought in an ancillary proceeding will necessarily satisfy the additional
requirements imposed by R.C. 2505.02(B)(4)(a) and (b). See Gupta v. Lima News
(Feb. 5, 2001), Allen App. No. 1-99-83, unreported, 

 (noting that
even if an order compelling production of records for an in camera inspection
satisfied the “provisional remedy” prong of R.C. 2505.02[B][4], the order would
not satisfy the additional requirements imposed by R.C. 2505.02[B][4][a] and
[B][4][b]).
                             2. R.C. 2505.02(B)(4)(a)
       {¶ 28} Even if a reviewing court determines that a particular order arises
from a “provisional remedy,” the reviewing court must still determine whether that
order effectively determines the action with respect to the provisional remedy and
prevents a judgment in favor of the appealing party with respect to the provisional
remedy. Only those orders meeting these additional requirements will be deemed
final under R.C. 2505.02(B)(4). R.C. 2505.02(B)(4)(a).




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                               January Term, 2001




       {¶ 29} This question is easily answered in this case. The forced medication
order issued by the trial court determined the action against Muncie with respect to
Ross’s petition for forced medication. The order definitively provided that the
physicians at Twin Valley could administer medication to Muncie against his will
in an effort to restore his competency to stand trial. The order also prevented a
judgment in favor of Muncie with respect to the proceeding for forced medication,
as it contained no provision permitting Muncie to contest either the administration
or dosage amounts of the drugs listed in Ross’s letter. Cf. Swearingen v. Waste
Technologies Industries (1999), 

, 

(finding that an order precluding an attorney from appearing pro hac vice met R.C.
2505.02[B][4][a] because “there was no further opportunity to petition the court for
the remedy being sought. The underlying action would have continued on its way
and appellants would have been forced to proceed without the aid of the counsel
requested”); see, also, State v. Saadey (June 30, 2000), Columbiana App. No.

, unreported, 

 (finding that an order disqualifying
defense counsel met R.C. 2505.02[B][4][a]). Accordingly, the second step of our
inquiry has been satisfied, for the trial court’s forced medication order meets R.C.
2505.02(B)(4)(a).
                            3. R.C. 2505.02(B)(4)(b)
       {¶ 30} Finally, the General Assembly has determined that an order arising
from a provisional remedy is not a final order unless “the appealing party would
not be afforded a meaningful or effective remedy by an appeal following final
judgment as to all proceedings, issues, claims, and parties in the action.” R.C.
2505.02(B)(4)(b). This division of the final order statute recognizes that, in spite
of courts’ interest in avoiding piecemeal litigation, occasions may arise in which a
party seeking to appeal from an interlocutory order would have no adequate remedy
from the effects of that order on appeal from final judgment. In some instances,
“[t]he proverbial bell cannot be unrung and an appeal after final judgment on the




                                        15
                             SUPREME COURT OF OHIO




merits will not rectify the damage” suffered by the appealing party. See Gibson-Myers & Assocs. v. Pearce (Oct. 27, 1999), Summit App. No. 19358, unreported,

, at *2; see, also, Cuervo v. Snell (Sept. 26, 2000), Franklin App.
Nos. 99AP-1442, 99AP-1443 and 99AP-1458, unreported, 

.
       {¶ 31} In Gibson-Myers, supra, the Summit County Court of Appeals
determined that an order compelling the production of documents containing trade
secrets was a final order, for the party resisting disclosure of those documents
would have had no ability after final judgment to restore the cloak of secrecy lifted
by the trial court’s order compelling production. Id., 

, at *2. In
Cuervo, the Franklin County Court of Appeals reached the same conclusion when
confronted with an appeal from an order compelling production of certain
communications about asset transfers—communications that were allegedly
subject to the attorney-client privilege. Cuervo, 

, at *2.
       {¶ 32} We find that an order compelling the administration of psychotropic
medication under R.C. 2945.38 satisfies R.C. 2505.02(B)(4)(b). As Glenn Weaver
notes in its amicus curiae brief, “The availability of appellate review after a
sentence is imposed offers no effective remedy for the accused person forced to
endure the side effects of those medications during the pendency of the …
proceedings.” As noted supra, both this court and the United States Supreme Court
have explicitly recognized the “particularly severe” interference with an
individual’s liberty interest caused by the involuntary administration of
antipsychotic drugs, as well as the potential for serious and even fatal side effects
that can result from the administration of such medication. See Steele, Riggins, and

 An incompetent criminal defendant forced to ingest potentially
harmful psychotropic medications against his or her will has an even greater interest
in an immediate appeal from that order than a party compelled to disclose
potentially privileged documents or trade secrets in a civil case. Accordingly, for
purposes of R.C. 2505.02(B)(4)(b), we conclude that an incompetent defendant




                                         16
                                  January Term, 2001




subject to an order compelling the involuntary administration of psychotropic
medication would have no meaningful or effective remedy by an appeal following
final judgment.
                                   III. Conclusion
          {¶ 33} In State v. Garcia (1995), 

, 

, the
Supreme Court of Connecticut assessed whether that state’s appellate courts had
jurisdiction to hear an incompetent defendant’s interlocutory appeal from an order
authorizing the involuntary administration of medication.          The Garcia court
conceded that interlocutory appeals were generally disfavored in criminal cases,
that appellate jurisdiction was limited by statute, and that an interlocutory order was
appealable only “where the order or action so concludes the rights of the parties
that further proceedings cannot affect them.” 

, 

, citing State
v. Curcio (1983), 

, 

. The Garcia court
decided, however, that the forced medication order infringed upon the incompetent
defendant’s vested liberty interest, and that “once such an interest is infringed upon
by the state, the defendant’s personal rights cannot be restored.” 

, 

. We agree, and hold that when a trial court orders an incompetent defendant
to be forcibly medicated with psychotropic drugs in an effort to restore the
defendant to competency, that order is final and appealable. The decision of the
court of appeals is reversed, and the cause is remanded for proceedings not
inconsistent with this opinion.
                                                                   Judgment reversed
                                                                and cause remanded.
          MOYER, C.J., F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
          RESNICK, J., concurs in syllabus and judgment.
          DOUGLAS, J., concurs in judgment.
                                __________________




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                           SUPREME COURT OF OHIO




       Donald W. White, Clermont County Prosecuting Attorney, and David H.
Hoffman, Assistant Prosecuting Attorney, for appellee.
       Rosenhoffer, Nichols & Schwartz and James A. Hunt, for appellant.
       A.J. Stephani, Executive Director, Glenn Weaver Institute of Law and
Psychiatry, urging reversal for amicus curiae Glenn Weaver Institute of Law and
Psychiatry, University of Cincinnati School of Law.
       Michael K. Allen, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio
Prosecuting Attorneys’ Association.
                             __________________




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