[Cite as State v. D.M.,
2019-Ohio-4686.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vsCase No. 2019 CA 00003
DANIEL M.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2018 CR 00205
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 13, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ERIC M. DEPUE JAMES A. ANZELMO
ASSISTANT PROSECUTOR 446 Howland Drive
20 North Second Street, 4th Floor Gahanna, Ohio 43230
Newark, Ohio 43055
Licking County, Case No. 2019 CA 00003 2
Wise, J.
{¶1} Appellant Daniel M. appeals the decision of the Court of Common Pleas,
Licking County, which ordered, subsequent to a plea of not guilty by reason of insanity
for felonious assault, involuntarily hospitalization and medication. Appellee is the State of
Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On March 27, 2018, officers from the Hebron Police Department responded
to an address on Raspberry Circle where appellant had become “enraged” and attacked
a male victim with a sword, causing a severe laceration on the man’s arm. Plea Tr. at 8.
{¶3} On April 5, 2018, appellant was indicted on one count of felonious assault
(R.C. 2903.11), a felony of the second degree.
{¶4} On August 21, 2018, appellant, with the assistance of counsel, pled not
guilty to the aforesaid charge by reason of insanity. On the same day, the trial court
accepted appellant’s plea and found him not guilty by reason of insanity. The trial court
also ordered appellant to be evaluated as to whether he should be subject to
hospitalization, pursuant to R.C. 2945.40(B). See Judgment Entry, August 21, 2018. The
court ordered a report on appellant’s evaluation to be filed within ten days of the date of
the plea; however, the court subsequently granted an extension to file the report on or
before September 20, 2018.
{¶5} Appellant was evaluated by Dr. Daniel Hrinko on September 17, 2018. See
State's Exhibit 1. At that time, appellant was in placement at the Twin Valley Behavioral
Healthcare Center in Columbus, Ohio. On September 24, 2018, Dr. Hrinko issued his
written evaluation. He therein recommended that appellant be placed in a locked
psychiatric facility for treatment.
Licking County, Case No. 2019 CA 00003 3
{¶6} On December 5, 2018, the State filed a motion asking the trial court to order
appellant to undergo forced medication because he was refusing treatment. On
December 11, 2018, the trial court held a hearing on the State’s aforesaid request. At the
hearing, appellant moved for dismissal and discharge under the time requirements of R.C.
2945.40(B), in accordance with his similar written motion filed on November 7, 2018.
{¶7} The trial court issued a judgment entry on December 13, 2018, ordering
inter alia that appellant undergo treatment for mental illness at Twin Valley Behavioral
Healthcare and to undergo forced medication administration. Appellant’s request for
discharge was denied.
{¶8} On January 8, 2019, appellant filed a notice of appeal. He herein raises the
following three Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED BY DENYING [APPELLANT’S] MOTION
TO DISMISS, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS UNDER THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION 1, ARTICLE I, OF THE OHIO CONSTITUTION.
{¶10} “II. THE TRIAL COURT ERRED BY PLACING [APPELLANT] UNDER
INVOLUNTARY HOSPITALIZATION, IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 1, ARTICLE I, OF THE OHIO CONSTITUTION.
{¶11} “III. THE TRIAL COURT ERRED BY ORDERING [APPELLANT] TO
UNDERGO FORCED MEDICATION, IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 1, ARTICLE I, OF THE OHIO CONSTITUTION.”
Licking County, Case No. 2019 CA 00003 4
Appellate Jurisdiction
{¶12} As an initial matter, we have sua sponte observed in our review of the
procedural history of this case that on March 14, 2019, approximately two months after
appellant filed his notice of appeal, the trial court held a subsequent “hearing on [the] Twin
Valley Report.” In the resulting March 14, 2019 judgment entry issued by the trial court,
appellant was again at that time inter alia “ordered to undergo treatment for this mental
illness at Twin Valley Behavioral Healthcare, Civil Unit, (Kosar), for post-NGRI treatment”
although the court added Level III movement privileges. No notice of appeal is evident
regarding this March 14, 2019 order, which appears to be a “continued commitment”
ruling under R.C. 2945.401(C). This raises the question of whether the December 13,
2018 judgment entry under appeal should be treated as an interlocutory order that has
been superseded by a subsequent judgment entry and thus been rendered moot. Cf. In
re Harris, 8th Dist. Cuyahoga No. 76631, 2000 WL 1643569.
{¶13} In Wachtel v. Athens Cty. Common Pleas Court, 4th Dist. Athens No.
01CA25, 2002-Ohio-1478, the Fourth District Court of Appeals determined that
commitment rulings under R.C. 2945.40 are orders that affect substantial rights made in
special proceedings for purposes of a final order determination under R.C. 2505.02(B)(2).
Id. at ¶ 7. The Court also found that “… since it may be as long as two years between
continued-commitment hearings, … each such hearing is a special proceeding.” Id.
{¶14} In light of Wachtel’s reasoning, we answer our above question in the
negative and find we may proceed to the merits of the present appeal.
Licking County, Case No. 2019 CA 00003 5
I.
{¶15} In his First Assignment of Error, appellant contends the trial court erred in
denying his motion to dismiss the State’s request for hospitalization. We disagree.
{¶16} R.C. 2945.40(B) states as follows: “The court shall hold the hearing under
division (A) of this section to determine whether the person found not guilty by reason of
insanity is a mentally ill person subject to court order or a person with an intellectual
disability subject to institutionalization by court order within ten court days after the finding
of not guilty by reason of insanity. Failure to conduct the hearing within the ten-day period
shall cause the immediate discharge of the respondent, unless the judge grants a
continuance for not longer than ten court days for good cause shown or for any period of
time upon motion of the respondent.”
{¶17} In the case sub judice, the trial court received Dr. Hrinko’s evaluation of
appellant on or about September 24, 2018. The hearing on said evaluation took place on
December 11, 2018, clearly outside of the twenty “court day” maximum time frame of R.C.
2945.40(B) absent any motions for extension by appellant.
{¶18} However, the Second District Court of Appeals has addressed the issue
before us. See State v. Pollock, 2nd Dist. Greene No. 2001-CA-32, 2002-Ohio-102. The
Court in Pollock stated: “… Ohio Supreme Court precedent as well as public policy
considerations lead us to conclude that a trial court's failure to conduct a treatment
hearing within the time limits of R.C. 2945.40(B) does not deprive the trial court of
authority to order commitment of a mentally ill defendant.”
Id. The Court observed that
R.C. 2945.40(B) “is a time restriction on the performance of an official duty” that contained
no language terminating a trial court's jurisdiction or otherwise barring further proceedings
Licking County, Case No. 2019 CA 00003 6
where said time restriction had not been met. The Court thus concluded: “… [E]ven
though Pollack [sic] was entitled to be discharged from custody pending the dispositional
hearing, in view of the fact that the trial court waited too long to hold the hearing, his
discharge would not have affected the court's continued jurisdiction to order treatment.”
Id.
{¶19} We concur with the reasoning of Pollock and herein hold the trial court did
not err in the present case in denying appellant’s request to dismiss.
{¶20} Appellant's First Assignment of Error is therefore overruled.
II.
{¶21} In his Second Assignment of Error, appellant contends the trial court erred
and violated his due process rights by placing him under involuntary hospitalization. We
disagree.
{¶22} The nature and conditions of an insanity acquittee's confinement are a
determination which lies within the sound discretion of the trial court. State v. Crossan,
122 Ohio App.3d 511, 514,
702 N.E.2d 157 (4th Dist.1997) (additional citations omitted).
The trial court's discretion is guided under R.C. 2945.40(F) by an instruction to “give
preference to public safety” when considering the acquittee’s request. State v. Stutler, 5th
Dist. Stark No. 2017CA00094,
2018-Ohio-1619,
101 N.E.3d 738, ¶ 21. Furthermore, as
an appellate court, we are not the trier of fact. Our role is to determine whether there is
relevant, competent, and credible evidence upon which the factfinder could base his or
her judgment. Tennant v. Martin–Auer,
188 Ohio App.3d 768,
936 N.E.2d 1013, 2010–
Ohio–3489, ¶ 16, citing Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758,
1982 WL
2911. The weight to be given to the evidence and the credibility of the witnesses are
Licking County, Case No. 2019 CA 00003 7
issues for the trier of fact. See, e.g., State v. Jamison (1990),
49 Ohio St.3d 182,
552
N.E.2d 180.
{¶23} Dr. Hrinko’s written report of September 24, 2018 records that appellant,
upon admission to Twin Valley on September 11, 2018, had exhibited disoriented
thoughts, visual hallucinations, “racing thoughts” and expressions of unspecific suicidal
ideations. See State’s Exhibit 1. In his testimony at the December 11, 2018 hearing, Dr.
Hrinko did make a number of positive comments about appellant, as pointed out in
appellant’s present brief. For example, regarding his September 17, 2018 evaluation, Dr.
Hrinko testified that appellant "was functioning relatively well" and that his "thinking was
relatively clear." Tr., Dec. 11, 2018, at 20. In regard to appellant’s plans for the future, Dr.
Hrinko recalled that appellant “had a reasonable insight and a reasonably good
commitment to making things work this time ….” Tr. at 22. However, Dr. Hrinko observed
that appellant had shown a tendency in the past, when leaving structured environments,
to stop using his medications and begin using street drugs, thus “return[ing] to unstable
flat-out dangerous behaviors.” Id. Thus, Dr. Hrinko agreed that appellant’s plan for being
maintained in the community (i.e., living with his mother and checking in with mental
health care providers) was not sufficient. Tr. at 21-22. He also opined that “success
requires more than being willing and committed.” Tr. at 22. Dr. Hrinko concluded:
I believe that the least restrictive environment that would meet his
needs and protect the safety of the community would be for him to be placed
in a locked civil psychiatric facility to have the benefits of the supports in
developing plans and opportunity to demonstrate those plans on a gradual
Licking County, Case No. 2019 CA 00003 8
return to the community that is consistent with the programs that I’ve seen
operate at Twin Valley in the past.
{¶24} Tr. at 23.
{¶25} The court also heard testimony and received a written report from Dr.
Christopher Corner, a psychiatrist at Twin Valley. Although a previous doctor (Dr. Dagum)
had "stabilized” appellant (see Tr. at 40, 44), Dr. Corner testified inter alia that in early
December 2018, appellant had informed hospital staff that he was refusing all
antipsychotic medication. Tr. at 41. Dr. Corner met with appellant, who was then
presenting as “extremely disorganized” and “quite paranoid.” Id. Dr. Corner opined that
he thought appellant “would be a dangerous man in the community undedicated.” Tr. at
42. He was in agreement with Dr. Hrinko’s opinion that appellant needed to be
institutionalized.
Id.
{¶26} Upon review, we find no grounds in this instance to reverse the decision of
the finder of fact who observed the proceedings firsthand, and we affirm the trial court's
implicit conclusion that the facts and circumstances clearly and convincingly demonstrate
appellant is a mentally ill person subject to continued hospitalization.
{¶27} Appellant’s Second Assignment of Error is overruled.
III.
{¶28} In his Third Assignment of Error, appellant contends the trial court erred and
violated his constitutional rights in ordering him to undergo the forced administration of
psychiatric medication without making written findings. We disagree.
{¶29} The Ohio Supreme Court has established that “[a] court may issue an order
permitting hospital employees to administer antipsychotic drugs against the wishes of an
Licking County, Case No. 2019 CA 00003 9
involuntarily committed mentally ill person if it finds, by clear and convincing evidence,
that: (1) the patient does not have the capacity to give or withhold informed consent
regarding his/her treatment; (2) it is in the patient's best interest to take the medication,
i.e., the benefits of the medication outweigh the side effects; and (3) no less intrusive
treatment will be as effective in treating the mental illness.” Steele v. Hamilton County
Community Mental Health Board (2000), 90 Ohio St.3d 176,
736 N.E.2d 10, paragraph
six of the syllabus.
{¶30} Building upon Steele, appellant herein first directs us to State v. Rowe, 3rd
Dist. Union No. 14-05-31, 2006-Ohio-1883, in which the defendant had pled not guilty by
reason of insanity to attempted murder and other felonies. Mr. Rowe argued on appeal
that the trial court had erred by ordering forced medications without making adequate
findings in support. The Third District Court concluded: “[W]e believe that it would be the
better practice to follow the procedure set forth by the Ohio Supreme Court in Steele in
determining matters of forced medication in NGRI cases.” Rowe at ¶ 44. Mr. Rowe’s
assigned error in this regard was sustained.
Id.
{¶31} Appellant also directs us to State v. Lantz, 11th Dist. No. 2010-P-0093,
2011-Ohio-5436,
969 N.E.2d 285. The Eleventh District Court therein applied the Steele
requirement of findings, even though it recognized that Steele involved a mentally ill
person whose detention in a mental-health facility was pursuant to an order in a civil
commitment proceeding, as opposed to a commitment order made in a criminal action
after a finding of not guilty by reason of insanity. Lantz at ¶ 16. However, the Court added
that it found “the need for proper findings is even more critical” in the circumstances before
Licking County, Case No. 2019 CA 00003 10
it, “given that it is evident from the appealed judgment that the trial court did not apply the
appropriate standard.” Lantz at ¶ 20.
{¶32} Upon review, notwithstanding that in the present case there is no patent
indication of the trial court applying an inappropriate standard to the question of forced
medication, we reject the rationale of Rowe and Lantz. While we would at least initially
agree with Rowe that specific written findings in these types of cases are the “better
practice,” we do not conclude that the failure to make them warrants reversal. Appellant
does not provide us with any statutory language indicating the General Assembly
intended to mandate formal findings in R.C. 2945.40 proceedings in the present context.
Furthermore, in proceedings before the bench, a trial court judge is presumed to know
the applicable law and apply it accordingly. See Walczak v. Walczak, Stark App.No.
2003CA00298, 2004–Ohio–3370, ¶ 22.
{¶33} We therefore find no reversible error in the lack of more detailed findings in
the judgment entry under appeal.
{¶34} Appellant's Third Assignment of Error is overruled.
{¶35} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/d 1101
