[Cite as State v. Jackson,
2014-Ohio-3611.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130240
TRIAL NO. B-1004540
Plaintiff-Appellee, :
O P I N I O N.
vs. :
STEVEN JACKSON, :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 22, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein & Gallagher, William R. Gallagher and Elizabeth Conkin, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Presiding Judge.
{¶1} Defendant-appellant Steven Jackson was charged with escape after he
left the Volunteers of American halfway-house program without permission in July
2012. Following a bench trial, the trial court found him not guilty by reason of
insanity (“NGRI”). As required by R.C. 2945.40, the court held a hearing within ten
days and found that Jackson was a mentally ill person subject to hospitalization. It
ordered his commitment to Summit Behavioral Healthcare Center (“Summit”).
{¶2} In April 2013, the trial court held a hearing to review Jackson’s
commitment as required by R.C. 2945.401. Summit submitted a report stating that
Jackson was still a mentally ill person subject to hospitalization and that Summit
remained “the least restrictive treatment setting, consistent with his medical health
needs and the safety of the community.” The report further stated that “[i]t is currently
the opinion of the treatment team … that Mr. Steven Jackson remains clinically
appropriate for a privilege level of 4. No increase in privilege level is recommended at
this time.” Under privilege level four, Jackson was permitted to go on supervised visits
in the community.
{¶3} Jackson’s counsel stipulated to the report and presented no other
evidence. The trial court then found by clear and convincing evidence that Jackson was
a mentally ill person subject to commitment and that the least restrictive alternative
consistent with public safety and Jackson’s welfare was continued placement at Summit.
The court then advised Jackson of his right to appeal.
{¶4} When the court asked if there was anything further, the prosecutor
stated that “one thing I would bring up for Mr. Jackson’s benefit is, I was asked this
morning by [Jackson’s counsel] how Mr. Jackson would go about getting level five,
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OHIO FIRST DISTRICT COURT OF APPEALS
which would be the next step up in privileges.” He went on to state, “He just needs to
work with treatment team on that and when they feel he’s ready they will let the Court
know.” Then, because Jackson had indicated that he wanted to appeal, the court stated
that he would appoint appellate counsel for him. Then, the hearing concluded.
{¶5} The court subsequently journalized a judgment entry stating its findings
from the hearing, and Jackson filed a timely appeal from that judgment. Jackson’s
appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct.
1396,
18 L.Ed.2d 493 (1967), in which she stated that she was unable to find any error
that would entitle her client to relief. She requested this court to independently review
the record to determine if the proceedings were free from prejudicial error, and moved
for permission to withdraw.
{¶6} This court held that Anders is not applicable to appeals from
involuntary-commitment orders. State v. Jackson, 1st Dist. Hamilton No. C-130240,
2014-Ohio-613, ¶ 12. Therefore, we granted counsel’s motion to withdraw, appointed
new counsel, and ordered the new counsel to file a brief on the merits. Id. at ¶ 14.
{¶7} Jackson now presents three assignments of error for review. In his first
assignment of error, he contends that the trial court erred in failing to inform him of his
rights as required by R.C. 2945.40(C). He argues that the court had a mandatory duty to
inform him of the rights specified in the statute and that the court’s failure to inform him
of those rights prejudiced him. This assignment of error is well taken.
{¶8} R.C. 2945.401 governs the continuing jurisdiction of the trial court over
a person committed following an NGRI acquittal. It requires the court to conduct a
review hearing six months after the commitment order, and then every two years
following the initial review. R.C. 2945.401(C). The hearing is not a criminal proceeding.
Jackson, 1st Dist. Hamilton No. C-130240, 2014-Ohio-613, at ¶ 9; State v. Z.J., 8th Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Cuyahoga No. 87912, 2007-Ohio-552, ¶ 18; State v. Wachtel, 4th Dist. Athens No.
98CA47, 2000 Ohio App. Lexis 4089, *6 (Aug. 29, 2000).
{¶9} At any hearing held under that section, the person found NGRI shall
have all the rights of “a person at a commitment hearing as described in section 2945.40
of the Revised Code.” R.C. 2945.401(F). R.C. 2945.40(C) provides:
If a person is found not guilty by reason of insanity, the person has the
right to attend all hearings conducted pursuant to sections R.C. 2945.37
to 2945.402 of the Revised Code. At any hearing conducted pursuant to
one of those sections, the court shall inform the person that the person
has all of the following rights:
(1) The right to be represented by counsel and to have that
counsel appointed at public expense if the person is indigent *
…;
(2) The right t0 have independent expert evaluation and to have
that independent expert evaluation provided at public expense
if the person is indigent;
(3) The right to subpoena witnesses and documents, to present
evidence on the person’s behalf, and to cross-examine
witnesses against the person;
(4) The right to testify in the person’s own behalf and to not be
compelled to testify;
(5) The right to have copies of any relevant medical or mental
health document in the custody of the state or of any place of
commitment other than a document for which the court finds
that the release to the person of information contained in the
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OHIO FIRST DISTRICT COURT OF APPEALS
document would create a substantial risk of harm to any
person.
(Emphasis added.)
{¶10} Very little case law exists interpreting this statute or exploring the
consequences of the trial court’s failure to comply with its provisions. The trial court
has “extensive authority to control the nature and disposition of an insanity
acquittee’s commitment.” State v. Kinman, 109 Ohio App.3d 95, 98,
671 N.E.2d
1083 (1st Dist.1996), quoting State v. Lanzy,
58 Ohio St.3d 154, 158,
569 N.E.2d 468
(1991). But, as the Fourth Appellate District has stated, “[T]he General Assembly has
determined that it is important for individuals facing the loss of their liberty or the
continued deprivation of their liberty through involuntary or continued commitment
to be informed of their rights during the hearing determining their commitment.”
Wachtel, 4th Dist. Athens No. 98CA47,
2000 Ohio App. LEXIS 4089, at *8. It went
on to hold that “[w]e find that the General Assembly’s use of the word ‘shall’ in
2945.40(C) places a duty upon the trial court to inform persons facing involuntary or
continued commitment of the rights listed in that section.”
Id. Accord State v.
Doran, 2d Dist. Montgomery No. 23750,
2010-Ohio-4530, ¶ 11-21.
{¶11} We agree with this reasoning. In this case, the trial court failed to
comply with that mandatory duty. We need not decide whether the court must
strictly or substantially comply with the statutory requirements because in this case,
it did not comply at all. See Wachtel at *8-9. The perfunctory hearing in this case
did not meet the statutory requirements.
{¶12} The state contends that Jackson effectively waived the issue by
stipulating to Summit’s psychiatric report and by failing to raise any objection. The
doctrine of waiver applies to all personal rights and privileges, whether contractual,
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OHIO FIRST DISTRICT COURT OF APPEALS
statutory or constitutional. Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio
St.3d 470,
2006-Ohio-6553,
861 N.E.2d 109, ¶ 49. “A waiver is a voluntary
relinquishment of a known right, with the intent to do so with full knowledge of all
the facts.” N. Olmsted v. Eliza Jennings, Inc.,
91 Ohio App.3d 173, 180,
631 N.E.2d
1130 (8th Dist.1993). Individuals may expressly or impliedly waive statutory
provisions for their own benefit. State ex rel. Wallace v. State Med. Bd.,
89 Ohio
St.3d 431, 435,
732 N.E.2d 960 (2000).
{¶13} Mere silence does not amount to a waiver where a party is not under a
duty to speak. Allenbaugh v. Canton, 137 Ohio St. 128, 133,
28 N.E.2d 354 (1940);
Hightower v. Hightower, 10th Dist. Franklin No. 02AP-37,
2002-Ohio-5488, ¶ 28.
Before silence will be construed as a waiver of rights expressly
conferred by statute, the duty to speak must be imperative, and the
silence must clearly indicate an intent to waive, or be maintained
under such circumstances that equity will impute thereto such intent.
Where, however, the silence is, under the circumstances, susceptible of
more than one interpretation, the waiver will not be inferred
therefrom.
Allenbaugh at 133.
{¶14} Perhaps, in the proper case, an individual who is under treatment due
to a NGRI verdict, could waive his or her rights. But nothing in the record in this
case shows that Jackson intended to waive his rights simply because he did not
assert them. The purpose of R.C. 2945.40(C) is to give an individual found NGRI
notice of his or her rights. The record does not show that Jackson knew of his rights,
much less that he waived them. To the contrary, the record shows that Jackson
wanted level five privileges, the propriety of which would have warranted an
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OHIO FIRST DISTRICT COURT OF APPEALS
independent evaluation. See Doran, 2d Dist. Montgomery No. 23750, 2010-Ohio-
4530, at ¶ 21.
{¶15} Further, while his counsel generally “stipulated to” the psychiatric
report, the record does not show whether he was stipulating to the validity of the
report’s contents or simply to its existence or authenticity. On the record before us,
we cannot hold that Jackson waived notice of his rights under R.C. 2945.40(C).
{¶16} Consequently, we sustain Jackson’s first assignment of error. We
reverse the trial court’s judgment and remand the cause to the trial court for another
hearing at which Jackson should properly be advised of his rights under the statute.
In light of our disposition of Jackson’s first assignment of error, we find his second
and third assignments of error to be moot, and we therefore, decline to address
them. See App.R. 12(A)(1)(c).
Judgment reversed and cause remanded.
F ISCHER and D E W INE , JJ., concur.
Please note:
The court has recorded its own entry this date.
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