[Cite as State v. Lowell,
2021-Ohio-3098.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 109684 and 109685
v. :
MEREDITH LOWELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED
RELEASED AND JOURNALIZED: September 9, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-636481-A and CR-19-646191-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sarah J. Denney, Assistant Prosecuting
Attorney, for appellee.
Weston Hurd, L.L.P., Shawn W. Maestle, Walter A. Lucas,
and Scott W. Lucas, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Meredith Lowell (“Lowell”) appeals from the
decision of the Cuyahoga County Common Pleas Court that imposed consecutive
terms of civil commitment after findings of not guilty by reason of insanity for two
incidents that occurred one year apart. For the following reasons, we reverse that
decision.
Factual and Procedural History
November 28, 2018 Incident
On November 28, 2018, Lowell was shopping in a supermarket in
University Heights, with her mother, when she encountered A.I., who was wearing
a jacket with fur trim around the hood. Lowell, who was carrying a Swiss army knife,
attacked A.I., stabbing her in the back and ripping a hole in A.I.’s jacket. A.I. was
not physically injured as a result of the attack. A store clerk, who saw the incident,
wrestled Lowell to the ground and took the knife from her. The police were called
and took Lowell into custody. Mother informed the police that Lowell had severe
autism and becomes upset when she sees someone wearing fur.
After the incident, Lowell was held on a three-day psychological hold
that was subsequently extended to 30 days. A detective followed up with Mother
and learned that Lowell had pulled the hair of a woman wearing fur at a church the
week before this incident. The detective confirmed that there was a police report
with the Bainbridge Township Police Department documenting that occurrence.
The detective also learned that Lowell had previously been charged by the Federal
Bureau of Investigation for solicitation for murder, based on allegations that Lowell
attempted to hire someone on Facebook to murder an individual who had ties to/or
wore fur.1
On January 18, 2019, Lowell was indicted on one count of felonious
assault. Over the next several months, Lowell was evaluated for competency and
sanity. It was ultimately determined that Lowell was competent to stand trial but
insane at the time of the crime.
On October 17, 2019, Lowell filed a written plea of not guilty by reason
of insanity. On November 20, 2019, Lowell filed a voluntary waiver of a jury trial.
That same day a bench trial was held. During the trial, the parties stipulated to the
sanity evaluation and submitted statements and exhibits to the court. The trial court
found Lowell not guilty by reason of insanity. The court also found that there was
probable cause to believe that Lowell was a mentally ill person subject to court order
pursuant to R.C. 2945.40(A). Lowell was ordered to the court psychiatric clinic for
further evaluation, and the case was continued to December 2, 2019. Lowell, who
was out on bond during the pendency of the case, was allowed to return home until
the next hearing.
November 20, 2019 Incident
On November 20, 2019, after leaving court, Lowell went to Fairmont
Presbyterian Church in Cleveland Heights, where she encountered a woman, A.Z.,
who was wearing boots lined with fur. Lowell attacked A.Z. with a knife, stabbing
1 The record reflects that Lowell was found incompetent to stand trial on that charge.
her twice in the left arm and once in the abdomen. At the time, A.Z. was babysitting
some children, who were waiting for choir practice to start. According to witnesses,
Lowell approached A.Z. from behind and appeared to punch her several times, then
walked off. It was not until afterward that witnesses realized that A.Z. had been
stabbed. A member of the church tackled Lowell, wrestled her to the ground, and
forcibly removed the knife from Lowell’s hand. Lowell was taken into custody and
on November 25, 2019, she was indicted on charges of attempted murder, felonious
assault, two counts of aggravated burglary, and burglary.
On December 6, 2019, Lowell was arraigned, and bond was set at
$250,000. On December 9, 2019, Lowell filed a written plea of not guilty by reason
of insanity. Lowell subsequently requested psychological evaluations of her
competence and sanity at the time of the crime. As before, those reports came back
indicating Lowell was competent to stand trial but insane at the time of the crime.
On February 25, 2020, Lowell filed a voluntary waiver of jury trial in
the new case. A bench trial was held at which time the parties again submitted
exhibits, stipulated to the competency and sanity evaluations, and gave statements
of fact to the court. Lowell was found not guilty by reason of insanity on the new
charges and the court again found there was probable cause to believe Lowell was a
mentally ill person subject to court order under R.C. 2945.40(A). The case was
continued for a civil commitment hearing.
March 16, 2020 Commitment Hearing
At the civil commitment hearing, the court indicated that it had
received a report from the psychiatric clinic evaluating Lowell and incorporated that
report into its findings. The trial court found that there was clear and convincing
evidence that Lowell was a mentally ill person “subject to
hospitalization/institutionalization.” The trial court further noted that under the
first indictment the maximum term of commitment would be eight years and that
under the second indictment the maximum term of commitment would be eleven
years. The court indicated that it would run those terms consecutively, noting:
Court: [W]hat the question is, is whether the maximum length of
time is on one file, eleven years, or whether the Court has the authority
to run consecutive sentences, one after the other. There is no real
guidance in the law. So, when I tell you that the lawyer is appealing it,
he is not appealing the eleven years. He’s appealing do I have the
authority. And to be honest with you, I hope he appeals it because I
don’t have a decision and nor does the State of Ohio, so it’s unknown
territory.
Lowell now appeals the consecutive terms of civil commitment imposed by the trial
court and assigns the following error for our review:
Assignment of Error
The trial court erred as a matter of law when it imposed “consecutive” terms
of civil commitment in violation of §2945.401(J)(1) as well as Ohio law.
Standard of Review
The standard of review for questions of statutory interpretation is de
novo. Wayt v. DHSC, L.L.C., 155 Ohio St.3d 401,
2018-Ohio-4822,
122 N.E.3d 92,
¶ 15. The primary goal in construing a statute “‘is to ascertain and give effect to the
intent of the legislature as expressed in the statute.’” State v. Parker, 8th Dist.
Cuyahoga No. 105361,
2018-Ohio-579, ¶ 24, quoting Hudson v. Petrosurance, Inc.,
127 Ohio St.3d 54,
2010-Ohio-4505,
936 N.E.2d 481, ¶ 30. “To determine the intent
of the legislature, we first look to the plain language of the statute.” Yoby v.
Cleveland,
2020-Ohio-3366,
155 N.E.3d 258, ¶ 20 (8th Dist.), citing State ex rel.
Burrows v. Indus. Comm.,
78 Ohio St.3d 78, 81,
676 N.E.2d 519 (1997). “When a
statute is plain and unambiguous, we apply the statute as written and no further
interpretation is necessary.”
Wayt at ¶ 15, citing Portage Cty. Bd. Of Commrs. v.
Akron,
109 Ohio St.3d 106,
2006-Ohio-954,
846 N.E.2d 478, ¶ 52.
Underpinnings of the Treatment of Mentally Ill in the Courts
This appeal requires an examination of the civil commitment process
and its associated statutes as applied in criminal cases. To provide understanding
and context, it is important to review the constitutional history of civil commitment
and the decisions that have delineated the treatment of those who are mentally ill.
The applicable statutes are designed to ensure that the state’s civil commitment
procedure meets constitutional requirements. Consequently, it was error for the
trial court to impose consecutive periods of commitment. Furthermore, consecutive
civil commitments bear no relationship to the purpose of commitment, which is to
treat the patient until either no longer mentally ill or no longer a danger to the
public.
“[T]he insanity defense goes to the very root of our criminal justice
system and is founded on the broader principle that an insane person may not be
held criminally responsible for his conduct.” State v. Curry, 45 Ohio St.3d 109, 112,
543 N.E.2d 1228 (1989). “[O]ne, who does not know that his action is wrong … is
not a proper subject for punishment.”
Id., citing State v. Staten,
18 Ohio St.2d 13,
20,
247 N.E.2d 293 (1969), superseded by statute.2 While a finding of not guilty by
reason of insanity is an acknowledgment that an insanity acquittee3 cannot be held
criminally liable for their actions, it is not, typically, followed by release but by civil
commitment to a mental health facility for treatment. Unlike criminal defendants
who are confined for punishment, insanity aquittees are confined for treatment and
safety.
Civil commitment, in general, has a long history. In the past, those
who were mentally ill, but incapable of taking care of themselves, were warehoused
in a jail or a hospital, with little to no treatment at either.4 Ultimately, the Supreme
Court began to define the state’s ability to civilly commit mentally ill persons as well
2 Under Staten, the court defined an insane person as “one who does not know
that his action is wrong or does not have the capacity to avoid such action ….” Id. at 20.
In 1990, however, the state moved away from the volitional aspect of that test, codifying
R.C. 2901.01(A)(14) which defines insanity as an affirmative defense that requires proof by
a preponderance of the evidence, that the person did not know, as a result of a severe mental
disease or defect, the wrongfulness of the person’s act.
3 Because someone found “not guilty by reason of insanity” falls into a specific
legal category, we use the term “insanity acquittee” to describe them. As the court noted in
Staten, the defense of insanity “does not encompass all the mental abnormalities which
medical science recognizes as encompassed within the term insanity.” Staten at 18. We
use “insanity acquittee” to distinguish someone who is not responsible for a criminal act
from someone deemed clinically insane, who nevertheless would not be insane in a criminal
case.
4 See Megan Testa and Sara G. West, Civil Commitment in the United States.
Psychiatry (Edgmont) 2010 Oct; 7(10):30-40. PMID: 22778709; PMCID: PMC3392176 for
a psychiatric perspective on civil commitment.
as the rights of mentally ill persons when facing civil commitment. The court noted
that “[a] finding of ‘mental illness’ alone cannot justify a State’s locking a person up
against his will and keeping him indefinitely in simple custodial confinement.”
O'Connor v. Donaldson, 422 U.S. 563, 575,
95 S.Ct. 2486,
45 L.Ed.2d 396 (1975).
“[T]he mere presence of mental illness does not disqualify a person from preferring
his home to the comforts of an institution.”
Id. In so saying, the court found that
the state has no legitimate constitutional interest in confining a nondangerous
individual capable of surviving on his own or with the help of others.
Id. See In re
Burton,
11 Ohio St.3d 147, 150,
464 N.E.2d 530 (1984).
The Supreme Court established that “civil commitment for any
purpose constitutes a significant deprivation of liberty that requires due process
protection.” Addington v. Texas, 441 U.S. 418, 425,
99 S.Ct. 1804,
60 L.Ed.2d 323
(1979), Burton at
id. This is true whether the commitment is designated civil or
criminal. Specht v. Patterson,
386 U.S. 605, 608,
87 S.Ct. 1209,
18 L.Ed.2d 326
(1967); citing Baxstrom v. Herold,
383 U.S. 107,
86 S.Ct. 760,
15 L.Ed.2d 620
(1996). The court further noted that:
[t]he state has a legitimate interest under its parens patriae
powers in providing care to its citizens who are unable because of
emotional disorders to care for themselves; the state also has authority
under its police power to protect the community from the dangerous
tendencies of some who are mentally ill.
Addington at 426.
However, “due process requires that the nature and duration of
commitment bear some reasonable relation to the purpose for which the individual
is committed.” Jackson v. Indiana, 406 U.S. 715, 738,
92 S.Ct. 1845,
32 L.Ed.2d 435
(1972).
When a person is found not guilty by reason of insanity, that person
is presumed presently mentally ill and dangerous. Jones v. United States, 463 U.S.
354, 363-366,
103 S.Ct. 3043,
77 L.Ed.2d 694 (1983). A finding of not guilty by
reason of insanity is “sufficient foundation for commitment of an insanity acquittee
for the purposes of treatment and the protection of society.”
Id. at 366. The purpose
of committing an insanity acquittee:
… is to treat and, if possible, to rehabilitate the person. The
state incurs a responsibility to provide such care as is reasonably
calculated to achieve the patient’s sanity or to improve his mental
condition. Therefore … there must be a bona fide effort to provide a
meaningful amount of some appropriate form of treatment.
In re Burton, 11 Ohio St.3d 147, 152,
464 N.E.2d 530 (1984).
Further, an insanity acquittee may only be held as long as they are
mentally ill or dangerous. Foucha v. Louisiana, 504 U.S. 71, 76,
112 S.Ct. 1780,
118
L.Ed.2d 437 (1992), citing
Jones at 368. “[T]he Constitution permits the
Government, on the basis of the insanity judgment, to confine [an insanity
acquittee] to a mental institution until such time as he has regained his sanity or is
no longer a danger to himself or society.”
Id. at 77 at
id. at 368, 370. When an
insanity acquittee is no longer mentally ill or a danger to the public, “he is entitled
to constitutionally adequate procedures to establish the grounds for his
confinement.” Id. at 79.
An insanity acquittee’s commitment is based solely on their status,
not on a specific length of commitment. By its very nature, a civil commitment could
last indefinitely if the insanity acquittee remains mentally ill or dangerous.
Consequently, the imposition of consecutive commitment is not required to achieve
protection of the public.
Law and Analysis
The parties have focused on the interpretation of R.C. 2945.401(J)
which states, in pertinent part:
(1) A … person who has been committed pursuant to …
2945.40 of the Revised Code continues to be under the jurisdiction of
the trial court until the final termination of the commitment. For
purposes of division (J) of this section, the final termination of a
commitment occurs upon the earlier of one of the following:
(a) The … person no longer is a mentally ill person subject to
court order or a person with an intellectual disability subject to
institutionalization by court order, as determined by the trial court;
(b) The expiration of the maximum prison term or term of
imprisonment that the … person could have received if the …
person had been convicted of the most serious offense with which the
… person is charged or in relation to which the … was found not
guilty by reason of insanity;
In the instant case, both the state and Lowell argue that R.C.
2945.401(J) is unambiguous, however, they come to different conclusions as to its
meaning. Lowell argues that under R.C. 2945.401(J)(1)(b), the maximum term of
commitment is 11 years. The state argues that because there are two separate
findings of not guilty by reason of insanity, in this case, the trial court’s order does
not violate R.C. 2945.401(J)(1)(b).
However, we find R.C. 2945.401(J)(1)(b) is designed to provide a final
point of review of the trial court’s jurisdiction should the insanity acquittee remain
in civil commitment at that time.
Shortly after R.C. 2945.401 was enacted, an insanity acquittee, who
had been committed longer than his maximum possible prison term, challenged the
jurisdiction of the trial court to continue his commitment. In finding that the trial
court no longer had jurisdiction to continue his commitment, the Supreme Court
noted:
Prior to the enactment of R.C. 2945.401 … [a] defendant who
was found not guilty by reason of insanity and committed to a
psychiatric hospital remained indefinitely subject to the jurisdiction of
the trial court to order continued periodic recommitments.
State v. Hawkins, 87 Ohio St.3d 311, 312,
720 N.E.2d 521 (1999).
Thus, R.C. 2945.401(J) is jurisdictional and does not set the term of
the insanity acquittee’s commitment. An insanity acquittee “continues to be under
the jurisdiction of the trial court until the final termination of the commitment.”
R.C. 2945.401(J)(1). Further, final termination occurs on the earlier of one of two
dates as defined under R.C. 2945.401(J)(1)(a) and (b). Under R.C.
2945.401(J)(1)(a) termination occurs if the insanity acquittee is no longer a mentally
ill person subject to court order. A mentally ill person subject to court order is
someone who, because of their mental illness:
(2) Represents a substantial risk of physical harm to others as
manifested by evidence of recent homicidal or other violent behavior,
evidence of recent threats that place another in reasonable fear of
violent behavior and serious physical harm, or other evidence of
present dangerousness;
(4) Would benefit from treatment for the person’s mental illness
and is in need of such treatment as manifested by evidence of behavior
that creates a grave and imminent risk to substantial rights of others or
the person;
R.C. 5122.01(B)(2) and (4).5
To determine whether the insanity acquittee remains a mentally ill
person subject to court order, periodic evaluations are required. Beginning six
months from the date of commitment, the department of mental health and
addiction (“MHA”) submits reports to the trial court every two years indicating
whether the insanity acquittee remains a mentally ill person subject to court order.
After every such report, the trial court must hold a hearing to determine the
continued commitment of the insanity acquittee or approve any change in the
conditions of commitment. If MHA recommends termination of the commitment,
R.C. 2945.401(D) defines the process necessary to terminate the commitment.
Where previously these periodic hearings could occur indefinitely,
under R.C. 2945.401(J)(1)(b) the trial court’s jurisdiction terminates at the end of
the maximum prison term the insanity acquittee could have been sentenced to for
the most serious crime they were found not guilty by reason of insanity. R.C.
2945.401(J)(1)(b) is the outside limit that the trial court retains jurisdiction. If the
5 R.C. 5122.01(B) also includes those who are suicidal, as well as those whose
mental illness prevents them from being able to care for themselves, as well as other terms,
however, because those sections are not directly relevant to this appeal, we do not include
them.
insanity acquittee has not been terminated pursuant to R.C. 2945.401(J)(1)(a), and
therefore remains a mentally ill person subject to court order at the end of their
maximum term, the trial court or prosecutor may file for civil commitment under
Chapters 5122 or 5123 of the Ohio Revised Code, thereby transferring jurisdiction of
the case to the probate court. R.C. 2945.401(A); State v. Williams, 126 Ohio St.3d
65,
2010-Ohio-2453,
930 N.E.2d 770, ¶ 18.
R.C. 2945.401 “merely provides the procedural and jurisdictional
bases upon which determinations of continued commitment are to be conducted *
….” State v. Hawkins, 9th Dist. Summit No. 18765, 1998 Ohio App. LEXIS 4391
(Sept. 23, 1988), at 7, aff’d,
87 Ohio St.3d 311,
720 N.E.2d 521 (1999).
Further, R.C. 2945.401 is prospective. It governs the court’s conduct
after commitment. R.C. 2945.40 defines the court’s authority to commit the
insanity acquittee. R.C. 2945.40(A) states in pertinent part:
If a person is found not guilty by reason of insanity … the trial
court shall conduct a full hearing to determine whether the person is a
mentally ill person subject to court order or a person with an
intellectual disability subject to institutionalization by court order.
Once the trial court finds that a person is a “mentally ill person
subject to court order,” R.C. 2945.40(F) states that the trial court:
… shall commit the person either to the department of mental
health and addiction services for treatment in a hospital, facility, or
agency as determined clinically appropriate by the department of
mental health and addiction services or to another medical or
psychiatric facility, as appropriate.
R.C. 2945.40(F) comes into play right after a finding of not guilty by
reason of insanity. It empowers the trial court to commit the insanity acquittee,
however, it does not allow the court to set the equivalent of a sentence. This is
necessarily the case, because the insanity acquittee’s commitment is solely based
upon whether they remain a mentally ill person subject to court order. R.C.
2945.401. Commitment is terminated once they no longer fit that definition. R.C.
2945.401(J). Had the General Assembly intended to authorize trial courts to impose
a specific length of commitment or, as in this case, impose consecutive
commitments, it could have included that language. We will not add words to a
statute by “judicial fiat” that the General Assembly could have included but chose
not to add. Gabbard v. Madison Local School Dist. Bd. of Edn., Slip Opinion No.
2021-Ohio-2067, ¶ 19, citing Hulsmeyer v. Hospice of Southwest Ohio, Inc.,
142
Ohio St.3d 236,
2014-Ohio-5511,
29 N.E.3d 903, ¶ 26.
In summary, the length of jurisdiction is determined by the mental
condition of the insanity acquittee and the risk he or she poses to others. R.C.
2945.40 allows the trial court to commit a person once they are found to be a
mentally ill person subject to court order. Under R.C. 2945.401(J), the trial court
retains jurisdiction until either the insanity acquittee is no longer a mentally ill
person subject to court order or the expiration of the maximum prison term for their
most serious offense, whichever comes first. Afterwards, the trial court or the
prosecutor may initiate transfer of the civil commitment to the probate court.
The state suggests that because there were two findings of not guilty
by reason of insanity, the trial court’s order was permitted by R.C. 2945.401(J)(1)(b).
We disagree. The fact that there are two findings of not guilty by reason of insanity
here is irrelevant. Nothing in R.C. 2945.40 or 2945.401 gives the trial court
authority to order consecutive periods of commitment. In the instant case, where
there are two separate incidents that form the basis of the trial court’s order, R.C.
2945.40 authorizes the court to conduct a hearing as to each case and to commit the
person for each incident. However, the effect of the commitment orders is the same:
commitment until the person is no longer mentally ill or a danger to others.
Application of Criminal Sentencing Statutes to Insanity
Acquittees
Consecutive commitments are not permitted by the statute.
However, as the trial court used the term “consecutive sentences,” we now examine
whether R.C. 2929.14(C)(4), the consecutive sentencing statute, applies to an
insanity acquittee committed under R.C. 2945.40. Preliminarily, we note there is a
clear distinction between the treatment of convicted defendants and insanity
acquittees. Imposition of consecutive sentences occurs when a convicted person’s
behavior is deemed severe. R.C. 2929.14(C). There is a recognition that a sane
person understands the nature of their conduct and therefore it is appropriate to
review a sane person’s behavior for punishment because of that knowledge. State v.
Swiger, 9th Dist. Summit No. 26556, 2013-Ohio-3519, ¶ 13; referencing R.C.
2901.01(A)(14). In contrast, to penalize, as opposed to treat a person with mental
illness criminalizes mental illness. The civil commitment process, although not
perfect, is designed to prevent the criminalization of mental illness. To apply
consecutive sentencing language and standards eliminates the distinction, created
by the legislature, between the adjudication of sane and insane individuals. Yes, the
government has a duty to protect society from individuals who create a risk of harm
to persons. However, the government has made the clear distinction how the
protection is secured. Insanity acquittees are governed by R.C. 2945.401.
Application of a criminal statute to a civil process erroneously eliminates the
distinction.
Moreover, courts have consistently rejected attempts to apply
criminal statutes to persons acquitted by reason of insanity. In State v. Tuomola,
104 Ohio St.3d 93,
2004-Ohio-6239,
818 N.E.2d 272, the trial court found Tuomola
not guilty by reason of insanity. The court noted that under the authority of R.C.
2945.401(J) it retained jurisdiction of Tuomola for the maximum term he could be
sentenced, in his case, eighteen months from the date he was committed. Id. at ¶ 4.
Tuomola appealed arguing that he was entitled to credit for the time he served in jail
prior to his commitment pursuant to R.C. 2967.191. The court of appeals agreed.
However, the Supreme Court found that R.C. 2967.191 only applies to those
convicted of an offense and thus did not apply to an insanity acquittee. Id. at ¶ 32.
The court further noted:
[R.C.] 2945.40(F) authorizes the trial court to “commit the
person to a hospital operated by the department of mental health.”
Rather than being “sentenced,” therefore, a defendant who is found
[not] guilty by reason of insanity is committed; and rather than being a
“prisoner” who receives a “prison term,” such a defendant is a patient
who is committed to a hospital. Thus, the language that surrounds the
word “conviction” in R.C. 2967.191 removes any doubt that the statute
does not apply to a defendant who is found not guilty by reason of
insanity.
(Emphasis sic.) Id. at ¶ 15.6
In our recent decision in State v. Young, 8th Dist. Cuyahoga No.
108868, 2021-Ohio-215, the distinction between sentence and commitment was
maintained. There, we considered the state of Ohio’s argument that the maximum
sentence under R.C. 2945.401(J)(1)(b) should include the indefinite term required
under R.C. 2967.271.
Young was found not guilty by reason of insanity for two counts of
aggravated burglary. Under R.C. 2967.271, his maximum term was 11 years plus 50
percent for a maximum possible term of 16 ½ years. The trial court held that R.C.
2967.271 did not apply, thus the maximum term was 11 years. The state did not
object to the trial court’s calculation, however, it later appealed the decision. The
state argued that the “sentence” was void and that Young’s term of commitment
should have been 16 ½ years. Finding that Young’s commitment was civil in nature,
we rejected the state’s contention that a civil commitment was the same as a criminal
sentence. Id at ¶ 12.
Similarly, R.C. 2929.14(C)(4), which governs consecutive sentences,
does not apply to an insanity acquittee’s term of commitment. R.C. 2929.14(C)(4)
allows consecutive sentences:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to
serve the prison terms consecutively if the court finds that the
6 However, see, Justice Pfeifer’s dissent — State v. Tuomala, 104 Ohio St.3d
93,
2004-Ohio-6239,
818 N.E.2d 272, ¶ 34 (arguing maximum prison term person could
have served in R.C. 2945.401(J)(1)(b) would necessarily include jail-time credit.
consecutive service is necessary to protect the public from future crime
or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public, and if the court also finds any
of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of
the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
By statute, an “offender” means “a person who, in this state, is
convicted of or pleads guilty to a felony or a misdemeanor.” R.C. 2929.01(Z).
“Prison” means “a residential facility used for the confinement of convicted felony
offenders that is under the control of the department of rehabilitation and correction
and includes a violation sanction center operated under authority of section
2967.141 of the Revised Code.” R.C. 2929.01(AA). Finally, a “prison term” includes
a stated prison term or a term in a prison shortened by court or pursuant to specific
statutes. R.C. 2929.01(BB). We never reach the factors in R.C. 2929.14(C)(4)(a)
through (c), because an insanity acquittee is not an “offender” who was convicted of
multiple “prison terms.” Therefore, R.C. 2929.14(C)(4), by its unambiguous terms
does not apply to a person committed to a hospital as a mentally ill person subject
to court order.7
If the legislature had intended to apply R.C. 2929.14(C)(4) to persons
found not guilty by reason of insanity, it could have included that language in the
statute or expanded the definition of “offender” to include those persons. An
example is provided in R.C. 2921.34, the escape statute. The legislature determined
that escape is a felony of the fifth degree when:
The person was found not guilty by reason of insanity, and the
person’s detention consisted of hospitalization, institutionalization, or
confinement in a facility under an order made pursuant to or under
authority of section 2945.40, 2945.401, or 2945.402 of the Revised
Code.
Had the legislature intended for “maximum prison term” as used in
R.C. 2945.401(J)(1)(b) to include consecutive sentences under R.C. 2929.14(C)(4),
it would have included that language.
Consequently, we find that “maximum prison term” in
2945.401(J)(1)(b) that describes the final termination of the trial court’s jurisdiction
in an insanity acquittee’s civil commitment does not include consecutive sentences
as defined in R.C. 2929.14(C)(4).
7 We are mindful that in a case like this, where the insanity acquittee has
displayed multiple instances of violent conduct, the trial court has a legitimate concern for
her propensity for violence and her release into the community. However, as we have
illustrated, civil commitment of an insanity acquittee is designed to last until she is no
longer mentally ill or no longer a danger to the public.
Conclusion
The trial court did not have authority to impose consecutive
commitments. Lowell should remain committed until such time as she is no longer
mentally ill or a danger to others. The statutes that provide for civil commitment
provide for periodic review of her status and ensure that her continued commitment
is supported by both medical and legal authorities. Therefore, consecutive
commitments are not permitted nor warranted by statute. Finally, the trial court
retains jurisdiction on the first case up to eight years and on the second case up to
11 years, provided Lowell remains mentally ill or a danger to others. If she remains
mentally ill or a danger to others, the trial court may then transfer jurisdiction to
probate court for continued commitment pursuant to the applicable statutes. We,
therefore, sustain Lowell’s assignment of error.
Judgment reversed.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EMANUELLA D. GROVES, JUDGE
KATHLEEN ANN KEOUGH, P.J, and
EILEEN A. GALLAGHER, J., CONCUR
