[Cite as State v. D.M. , 2019-Ohio-4686.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsDANIEL M. Defendant-Appellant JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. Case No. 2019 CA 00003

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Comm on 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 43055Licking 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 guil ty by reason of insanity for felonious assault, involuntarily hospitalization and medica tion. 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 r esponded to an address on Raspberry Circle where appellant had become “e nraged” and attacked a male victim with a sword, causi ng a severe laceration on the man’s arm. Plea Tr. at 8. {¶3} On April 5, 2018, appellant was indicted on one count of feloni ous 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 sa me 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 wi thin 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, 2 018. 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 pl aced 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, o rdering inter alia that appellant undergo treatment for mental illness at Twin Va lley Behavioral Healthcare and to undergo forced medication administration. App ellant’s request for discharge was denied. {¶8} On January 8, 2019, appellant filed a notice of appeal. He here in 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 T HE OHIO CONSTITUTION. {¶10} “II. THE TRIAL COURT ERRED BY PLACING [APPELLANT] UNDER INVOLUNTARY HOSPITALIZATION, IN VIOLATION OF HIS DUE PROCESS RI GHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 1, AR TICLE I, OF THE OHIO CONSTITUTION

. {¶11} “III. THE TRIAL COURT ERRED BY ORDERING [APPELLANT] TO UNDERGO FORCED MEDICATION, IN VIOLATION OF HIS DUE PROCESS RIGH TS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 1, AR TICLE 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, approxi mately two months after appellant filed his notice of appeal, the trial court held a su bsequent “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, (Kosa r), for post-NGRI treatment” although the court added Level III movement privileges. No noti ce of appeal is evident regarding this March 14, 2019 order, which appears to be a “con tinued commitment” ruling under R.C. 2945.401(C). This raises the question of whet her the December 13, 2018 judgment entry under appeal should be treated as an interl ocutory order that has been superseded by a subsequent judgment entry and thus been re ndered 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 de termined that commitment rulings under R.C. 2945.40 are orders that affect su bstantial 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 speci al 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 a ppeal.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 hospitali zation. We disagree. {¶16} R.C. 2945.40(B) states as follows: “The court shall hold the he aring under division (A) of this section to determine whether the person fo und not guilty by reason of insanity is a mentally ill person subject to court order or a p erson with an intellectual disability subject to institutionalization by court order withi n ten court days after the finding of not guilty by reason of insanity. Failure to conduct the hea ring within the ten-day period shall cause the immediate discharge of the respondent, unless t he judge grants a continuance for not longer than ten court days for good cause s hown 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 e valuation took place on December 11, 2018, clearly outside of the twenty “court day” ma ximum 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 po licy 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 depr ive 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 otherwi se barring further proceedingsLicking County, Case No. 2019 CA 00003 6

where said time restriction had not been met. The Court thus c oncluded: “*** [E]ven though Pollack [ sic ] was entitled to be discharged from custody pending the dispos itional hearing, in view of the fact that the trial court waited too lo ng to hold the hearing, his discharge would not have affected the court's continued jurisdi ction 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 d ismiss. {¶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 involu ntary hospitalization. We disagree. {¶22} The nature and conditions of an insanity acquittee's confinemen t are a determination which lies within the sound discretion of the tri al court. State v. Crossan , 122 Ohio App.3d 511, 514, 702 N.E.2d 157 (4th Dist.1997) (addit ional 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 r equest. 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 t o determine whether there is relevant, competent, and credible evidence upon which the factf inder 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 credibilit y of the witnesses areLicking 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 exhibi ted disoriented thoughts, visual hallucinations, “racing thoughts” and expressi ons of unspecific suicidal ideations. See State’s Exhibit 1. In his testimony at the December 11, 2018 he aring, 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 wel l" and that his "thinking was relatively clear." Tr., Dec. 11, 2018, at 20. In regard to appe llant’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. How ever, Dr. Hrinko observed that appellant had shown a tendency in the past, when leaving s tructured environments, to stop using his medications and begin using street drugs, thu s “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 als o 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 mee t 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 gradualLicking County, Case No. 2019 CA 00003 8
return to the community that is consistent with the programs th at 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 fr om Dr. Christopher Corner, a psychiatrist at Twin Valley. Although a p revious 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 wa s refusing all antipsychotic medication. Tr. at 41. Dr. Corner met with appell ant, 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 appellan t 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 an d convincingly demonstrate appellant is a mentally ill person subject to continued hospita lization. {¶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 t he forced administration of psychiatric medication without making written findings. We disa gree. {¶29} The Ohio Supreme Court has established that “[a] court may issu e an order permitting hospital employees to administer antipsychotic drugs against the wishes of anLicking County, Case No. 2019 CA 00003 9 involuntarily committed mentally ill person if it finds, by cle ar and convincing evidence, that: (1) the patient does not have the capacity to give or wit hhold informed consent regarding his/her treatment; (2) it is in the patient's best in terest to take the medication, i.e ., the benefits of the medication outweigh the side effects; an d (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 defendan t 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 w ithout 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 S upreme 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 the rein applied the Steele requirement of findings, even though it recognized that Steele involved a mentally ill person whose detention in a ment al-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 critic al” in the circumstances beforeLicking County, Case No. 2019 CA 00003 10 it, “given that it is evident from the appealed judgment that t he 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 standar d 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 war rants 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 jud ge 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 detai led 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 o f the Court of Common Pleas, Licking County, Ohio, is hereby affirmed. By: Wise, J. Gwin, P. J., and Delaney, J., concur. JWW/d 1101