[Cite as State v. Stutler, 2018-Ohio-1619.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. John W. Wise, P.J. 

 Plaintiff - Appellee : Hon. W. Scott Gwin, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

JEREMY STUTLER : Case No. 2017CA00094 

 : 

 Defendant - Appellant : O P I N I O N 

 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court 

of Common Pleas, Case No. 2011-

CR-1169 

 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: April 24, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO MICHAEL A. PARTLOW 

Prosecuting Attorney 112 S. Water Street, Suite C 

 Kent, Ohio 44240 

By: KATHLEEN O. TATARSKY 

Assistant Prosecuting Attorney 

Appellate Section 

110 Central Plaza, South – Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2017CA00094 2 

Baldwin, J.

{¶1} Appellant, Jeremy Stutler, appeals the May 10, 2017 decision of the Stark 

County Court of Common Pleas denying his request for Level IV privileges pursuant to 

R.C. 2945.401. Appellee is the state of Ohio. 

STATEMENT OF FACTS AND THE CASE 

{¶2} Appellant was charged with murder in 2011, and found not guilty by reason 

of insanity in the Stark County Court of Common Pleas. The trial court committed 

appellant to Twin Valley Behavioral Healthcare, a maximum security mental health facility. 

In January of 2014, appellant was transferred to Northcoast Behavioral Healthcare. 

{¶3} A similar request was considered by this Court in 2015. On February 2, 

2015, Dr. Joy Stankowski, M.D., the Chief Clinical Officer of Northcoast Behavioral 

Healthcare authored a letter requesting appellant be granted Level IV medical privileges 

for community trips with staff/case manager supervision. 

{¶4} The State requested a second opinion from Dr. Arcangela Wood, a 

psychologist and the Director of Psycho–Diagnostic Clinic of Akron. Dr. Wood opined it 

would be reasonable for Appellant to be granted Level IV privileges; however, she listed 

a number of conditions at the end of the letter necessary for the granting of said privileges. 

Both parties stipulated to the reports at the May 4, 2015 hearing. 

{¶5} Following the hearing on May 4, 2015, the trial court denied the request for 

a change to Level IV privileges via Judgment Entry of May 8, 2015. We agreed “*** with 

the reasoning set forth in Hubbard, supra, and [found] a trial court retains discretion to 

deny a request for increased privileges even if the evidence in opposition to the requested 

modification presented by the state does not rise to the level of clear and convincing 
Stark County, Case No. 2017CA00094 3 

evidence.” State v. Stutler, 5th Dist. No. 2015CA00099, 2015-Ohio-5518, ¶ 13. We 

concluded that the trial court had not abused its discretion and affirmed the trial court’s 

decision. 

{¶6} On January 27, 2017, Dr. Stankowski delivered a letter to the Stark County 

Common Pleas Court with an Application for Level IV Privileges, completed by Sara G. 

West, M.D., attached.1 “The purpose of this report is to request an advancement in 

movement for Mr. Stutler, from Level III and Level IV medical, to Level III and Level IV 

medical and community.” The record does not clearly describe the distinction between 

the two levels, though it is clear that there are fewer restrictions on Level IV and the intent 

was to allow the appellant supervised “off ground trips that are therapeutic” as well as 

“other appropriate events.” After reviewing records and information provided to her, Dr. 

West stated “[i]t is my opinion with reasonable medical certainty that, in consideration of 

public safety and Mr. Stutler's liberty interests, the least restrictive setting for Mr. Stutler's 

treatment is continued hospitalization at Northcoast Behavioral Healthcare with 

advancement to Level IV community privileges.” 

{¶7} On February 24, 2017 the court ordered appellant to submit to an 

examination by the Psycho-Diagnostic Clinic. On April 27, 2017, Arcangela S. Wood, 

Psy .D. of the Psycho-Diagnostic Clinic submitted a comprehensive 30 page report after 

meeting with appellant for 90 minutes on March 21, 2017. She was aware of the plan to 

allow appellant Level IV privileges in the community and she approved the plan contingent 

 

1 In the trial court's order of January 10, 2017, the court references a letter of December 12, 2016 from 

Northcoast Behavioral Healthcare to the court regarding a request for Level IV privileges but that letter 

was not in the record. Appellant filed a motion on January 5, 2017 requesting the court issue an order to 

Northcoast Behavioral Healthcare to produce a report regarding Level IV privileges and the January 10, 

2017 entry granted that request. 
Stark County, Case No. 2017CA00094 4 

upon adoption of several conditions to protect public safety. She also concluded that the 

risk of Mr. Stutler’s committing any future violent acts was moderate, and that appellant 

would experience stress with the transition of going on supervised outings in the 

community and with increased contact with community members. 

{¶8} The trial court conducted a hearing pursuant to R.C. 2945.401(D) on May 

4, 2017. The aforementioned reports were submitted to the court and the testimony of Dr. 

Wood, Dr. West and appellant was presented to the court. At the conclusion of the hearing 

the court denied the request for Level IV privileges concluding in its entry of May 10, 2017 

that “The Court is not convinced in this short time that improvement has advanced enough 

to Level IV Privileges.” (Trial Court Entry, page 6). Appellant filed a notice of appeal on 

June 9, 2017 and submitted two assignments of error: 

{¶9} I. THE TRIAL COURT'S DETERMINATION THAT APPELLANT SHOULD 

BE DENIED A CHANGE TO LEVEL IV-COMMUNITY PRIVILEGES IS NOT 

SUPPORTED BY CLEAR AND CONVINCING EVIDENCE. 

{¶10} II. THE TRIAL COURT HAD NO DISCRETION TO DENY THE LEVEL 

CHANGE REQUESTED IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE 

INDICATING THAT THE LEVEL CHANGE SHOULD NOT BE GRANTED. 

STANDARD OF REVIEW 

{¶11} We review the trial court’s decision for an abuse of discretion. 

The nature and conditions of the insanity acquittee's confinement are 

a determination which lies within the sound discretion of the trial court. State 

v. Johnson (1987), 32 Ohio St.3d 109, 112, 512 N.E.2d 652, 655–656. The 

trial court may choose to reject the recommendations of both the state and 
Stark County, Case No. 2017CA00094 5 

the acquittee and order the acquittee to a more secure setting without 

abusing its discretion. State v. Gladding (1991), 72 Ohio App.3d 16, 21, 593 

N.E.2d 415, 417–418. Furthermore, the court does not abuse its discretion 

by rejecting the recommendation of the hospital caring for the acquittee; 

rather, the court is assumed to have an independent role in the 

determination. State v. Swiger (June 6, 1995), Tuscarawas App. No. 94 AP 

100073, unreported, 1995 WL 495393. 

State v. Crossan, 122 Ohio App.3d 511, 514, 702 N.E.2d 157, 159 (4th Dist.1997). 

{¶12} Appellant’s tenure in the custody of the state and any adjustments to his 

status are controlled by the terms of R.C. 2945.401 which state in relevant part that: 

(A) A defendant found incompetent to stand trial and committed 

pursuant to section 2945.39 of the Revised Code or a person found not 

guilty by reason of insanity and committed pursuant to section 2945.40 of 

the Revised Code shall remain subject to the jurisdiction of the trial court 

pursuant to that commitment, and to the provisions of this section, until the 

final termination of the commitment as described in division (J)(1) of this 

section. * * * 

* * * 

(D)(1) Except as otherwise provided in division (D)(2) of this section, when 

a defendant or person has been committed under section 2945.39 or 

2945.40 of the Revised Code, at any time after evaluating the risks to public 

safety and the welfare of the defendant or person, the designee of the 

department of mental health and addiction services or the managing officer 
Stark County, Case No. 2017CA00094 6 

of the institution or director of the facility or program to which the defendant 

or person is committed may recommend a termination of the defendant’s or 

person’s commitment or a change in the conditions of the defendant’s or 

person’s commitment. 

* * * 

(G) In a hearing held pursuant to division (C) or (D)(1) of this section, the 

prosecutor has the burden of proof as follows: 

*** 

(2) For a recommendation for a change in the conditions of the 

commitment to a less restrictive status, to show by clear and 

convincing evidence that the proposed change represents a threat 

to public safety or a threat to the safety of any person. 

(H) In a hearing held pursuant to division (C) or (D)(1) or (2) of this section, 

the prosecutor shall represent the state or the public interest. 

(I) At the conclusion of a hearing conducted under division (D)(1) of this 

section regarding a recommendation from the designee of the department 

of mental health and addiction services, managing officer of the institution, 

or director of a facility or program, the trial court may approve, disapprove, 

or modify the recommendation and shall enter an order accordingly. 

{¶13} We reviewed the trial court’s denial of a similar request in 2015 and, in 

affirming the trial court’s decision, we found “a trial court retains discretion to deny a 

request for increased privileges even if the evidence in opposition to the requested 

modification presented by the state does not rise to the level of clear and convincing 
Stark County, Case No. 2017CA00094 7 

evidence.” State v. Stutler, supra, at ¶ 13. We see no reason to alter our finding in this 

case and continue to hold that the trial court retains its discretion even if the prosecutor 

opposes the change and does not provide clear and convincing evidence of a threat to 

public safety or a person. 

{¶14} Appellant contends that the state has failed to provide clear and convincing 

evidence of a threat to public safety or a threat to the safety of any person and, as a result, 

the trial court has no discretion to reject the recommendations of Northcoast Behavioral 

Healthcare and must therefore grant the requested privileges. Such an interpretation of 

the Code would render a portion of R.C. 2945.401 meaningless and would be inconsistent 

with related portions of Chapter 2945. 

{¶15} Revised Code Section 2945.401(I) states: 

At the conclusion of a hearing conducted under division (D)(1) of this 

section regarding a recommendation from the designee of the department 

of mental health and addiction services, managing officer of the institution, 

or director of a facility or program, the trial court may approve, 

disapprove, or modify the recommendation and shall enter an order 

accordingly. (Emphasis added). 

{¶16} This grant of discretion is not contingent upon any proof, but is a clear and 

unambiguous grant of discretion to the trial court. The appellant contends that the 

discretion vanishes if the prosecutor does not carry its burden, but the language of the 

Code does not support that result. While R.C. 2945.401(G)(2) does state that the 

prosecutor has the burden of proof “to show by clear and convincing evidence that the 

proposed change represents a threat to public safety or a threat to the safety of any 
Stark County, Case No. 2017CA00094 8 

person” that section does not restrict the trial court’s actions. Compare the provisions 

from R.C. 2945.40 which provide a requirement of clear and convincing evidence and 

remove the trial court’s discretion: 

* * * if the court finds there is not clear and convincing evidence that the 

person is a mentally ill person subject to court order or a person with an 

intellectual disability subject to institutionalization by court order, the court 

shall discharge the person***** 

(F) If * * * the court finds by clear and convincing evidence that the person 

is a mentally ill person subject to court order, the court shall commit the 

person* * * 

R.C. 2945.40(E), (F) 

{¶17} An analogous limitation to discretion is found in the civil commitment 

statutes: 

(B) Unless, upon completion of the hearing the court finds by clear and 

convincing evidence that the respondent is a mentally ill person subject to 

court order, it shall order the respondent's discharge immediately. 

(C) If, upon completion of the hearing, the court finds by clear and 

convincing evidence that the respondent is a mentally ill person subject to 

court order, the court shall order the respondent for a period not to exceed 

ninety days to *** 

R.C. 5122.15(B), (C). See also R.C. 5924.504(A)(2) and R.C. 118.04(C). 
Stark County, Case No. 2017CA00094 9 

{¶18} The Legislature did not include a mandated action in R.C. 2945.401, but 

instead expressly preserved the discretion of the trial court. Protecting the trial court’s 

discretion is more consistent with our obligation to “read words and phrases in context 

and construe them in accordance with rules of grammar and common usage’ ” State ex 

rel. Barley v. Ohio Dept. of Job & Family Servs., 132 Ohio St.3d 505, 2012-Ohio-3329, 

974 N.E.2d 1183, ¶ 20, quoting State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 

2006-Ohio-5858, 856 N.E.2d 966, ¶ 11 and to give effect to every word and clause in the 

statute when we are seeking to interpret legislative intent.” State ex rel. Carna v. Teays 

Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 

193, ¶ 18. 

{¶19} Appellant cites to the holding of the 11th District in State v. Hubbard, 11th 

Dist. Trumbull No. 97-T-0144, 1999 WL 1080755 (Hubbard I) in support of his assertion 

that the failure to submit clear and convincing evidence robs the trial court of discretion. 

That court stated: 

“However, in apparent reaction to the Supreme Court of Ohio's holding in 

Johnson, the Ohio General Assembly enacted R.C. 2945.401(G)(2) 

requiring the state to prove, by clear and convincing evidence, the threat to 

public safety from a recommended change in the conditions of commitment 

to a less restrictive setting. 

State v. Hubbard, at *4. 

The Court in Johnson held that: 

*109 Where the sole determination to be made is whether an insanity 

acquittee, already established as being a mentally ill person subject to 
Stark County, Case No. 2017CA00094 10 

hospitalization by court order, should be transferred to a less restrictive 

treatment setting, no party has the burden of proof. *** The determination 

of whether the person should be transferred from his current commitment 

setting to a less restrictive placement is within the sound discretion of the 

trial court. 

State v. Johnson, supra, syllabus. 

{¶20} Revised Code 2945.401was enacted in S.B. No. 285, 1996 Ohio Laws 258 

and both 2945.401(G)(2) and (I) were contained in the statute as they currently appear. 

Neither section was a later amendment of the Code, nor has either been amended since 

adoption. Considering our mandate to give meaning to all words in the Code and the 

simultaneous enactment of the relevant sections of the Code, we believe the more 

reasonable interpretation of R.C. 2945.401 is that it was designed to address the lack of 

the assignment of a burden of proof identified by the Johnson court while still explicitly 

retaining the discretion described in that case. Any attempt to constrict the discretion of 

the trial court by imposing a prerequisite of clear and convincing evidence improperly 

amends the statute by adding language not included by the Legislature. We must “give 

effect to the words used, not to delete words used or to insert words not used.” Cleveland 

Elec. Illum. Co. v. Cleveland 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three 

of the syllabus, as cited in State v. Tuomala, 104 Ohio St.3d 93, 2004-Ohio-6239, 818 

N.E.2d 272, ¶¶ 11-12. 

{¶21} The trial court’s discretion is guided by an instruction to “give preference to 

public safety” when considering appellant’s request, R.C.2945.40(F), but appellant’s 

requirement that the court may only exercise its discretion when it finds an “unreasonable 
Stark County, Case No. 2017CA00094 11 

risk to the public” is a misconstruction of the language of the Revised Code that conflicts 

with that obligation. Likewise, appellant’s argument that trial court must find that the 

record contains clear and convincing evidence to deny the requested change and that, 

without that evidence, the trial court lacks any discretion and must grant the requested 

change is not supported by the unambiguous language of the Code. Appellant’s 

interpretation will lead to an untenable situation for the trial court. Under the appellant’s 

version, if the trial court concludes the evidence demonstrates that it is more likely than 

not that granting greater freedom to appellant will threaten public safety or the safety of 

an individual, the court would be powerless to act. Appellant’s position will also eliminate 

the court’s discretion to impose requirements on any grant of privileges and will create 

confusion where, as in the case before the court, the experts modify their opinion with 

specific, but different, contingencies that will affect the grant of privileges. The trial must 

retain discretion to resolve those differences and preserve public safety. 

{¶22} For the forgoing reasons, we reject appellant’s interpretation of the statute. 

{¶23} We believe a better construction of the statute is provided by the 

concurrence of Judge Cannon in State v. Hubbard, 11th Dist. Trumbull No. 2013-T-0082, 

2014-Ohio-4130 (Hubbard II): 

{¶ 37} I concur with the opinion of the majority. I write separately to clarify 

this court's standard of review, due primarily to appellant's suggestion that 

the relevant statute was amended “in order to clear up confusion concerning 

the amount of discretion afforded a trial court in these types of proceedings 

* * *.” However, appellant does not recognize that the amendment to the 
Stark County, Case No. 2017CA00094 12 

statute only limited the discretion of the trial court in a manner that is 

adverse to appellant. 

{¶ 38} R.C. 2945.401(E) indicates that, in making any determination, “the 

trial court shall consider all relevant factors, including, but not limited to * * 

*: (1) Whether, in the trial court's view, the defendant or person currently 

represents a substantial risk of physical harm to the defendant or person or 

others[.]” See, e.g., State v. Roden, 8th Dist. Cuyahoga No. 86841, 2006–

Ohio–3679, ¶ 9. 

*6 {¶ 39} I believe the legislative intent behind R.C. 2945.401 has always 

been to give the trial court broad discretion in approving changes in the 

course of treatment for those persons committed under R.C. 2945.39 or 

R.C. 2945.40. However, the statute was amended to include a method by 

which the state can object and thus prevent the trial court from releasing an 

institutionalized individual or from allowing a proposed, less restrictive 

status. R.C. 2945.401(G)(2). If the state establishes, by clear and 

convincing evidence, that the requested change is “a threat to public safety 

or a threat to the safety of any person,” the trial court no longer has 

discretion to approve the proposed, less restrictive status. Id. 

{¶ 40} Some of the cases reviewing this issue suggest that there must be 

clear and convincing evidence before the trial court is permitted to 

disapprove movement to a less restrictive status. See, e.g., State v. 

Aduddell, 5th Dist. Stark No.2010–CA–00137, 2011–Ohio–582, ¶ 33–34. 

However, I do not believe that is how the statute was intended to be applied. 
Stark County, Case No. 2017CA00094 13 

The trial court's discretion is only limited, pursuant to R.C. 2945.401(G)(2), 

if the state establishes “by clear and convincing evidence that the proposed 

change represents a threat.” If, however, the state does not meet its burden 

of proof, it is still within the trial court's discretion to disapprove the 

proposed, less restrictive status. 

State v. Hubbard, at ¶¶ 37-40 

{¶24} We approved this construction of R.C. 2945.401 in State v. Stutler, supra. 

{¶25} Appellant contends that because the concurrence is dicta, we should refrain 

from adopting its rational in this case. We are cognizant of the nature of the concurrence, 

but dicta in one matter can be persuasive in another, and we find this is one of those 

circumstances. Rauhaus v. Buckeye Local School Dist. Bd. of Educ., 6 Ohio St.3d 320, 

323, 453 N.E.2d 624 (1983); See also State v. Rhein, 5th Dist. Holmes No. 97CA591, 

1999 WL 1071672, *3 (Sept. 29, 1999). This interpretation gives meaning to all parts of 

the relevant code section, preserves the trial court’s discretion, and provides a limitation 

to the discretion that preserves public safety but does not infringe on appellant’s rights. If 

the prosecutor supplies the court with clear and convincing evidence of a threat to safety, 

we expect that will have an impact on the court’s discretion. However, when the evidence 

falls short of clear and convincing evidence, the trial court may exercise its discretion to 

ensure preservation of the public safety. This discretion will not be unlimited and must 

focus on public safety and may consider other factors such as those listed in 2945.40 (E). 

{¶26} Judge Cannon’s concurrence in Hubbard suggests that our opinion in 

Aduddell, supra is inconsistent with this interpretation of the statute. The facts in Aduddell

are not inconsistent with our determination that the trial court retains discretion to act 
Stark County, Case No. 2017CA00094 14 

despite the absence of clear and convincing evidence. In Aduddell the appellant was to 

be transferred from “from his current maximum security setting to a locked civil unit at 

Heartland Behavioral Health” Aduddell, at ¶ 8 and we found that “[t]he state presented no 

evidence that appellant's transfer would put the public at risk. The state offered no 

evidence of Heartland's inability to properly house an insanity acquittee such as 

appellant.” Aduddell at ¶ 33, (Emphasis added). Our focus was the lack of any evidence 

of a threat to safety. We did not have the opportunity to address whether the trial court 

retained any discretion as there was no need to do so. 

{¶27} In contrast, the record of this case contains evidence of a threat to public 

safety and a threat to the safety of any individual. Dr. Wood of the Psycho-Diagnostic 

Clinic engaged in a 90 minute clinical interview of appellant, listed the records she 

reviewed and provided a comprehensive report regarding the history of appellant’s illness 

and treatment. Dr. Wood also rated appellant on the HCR-20 violence risk assessment 

instrument and concluded that “Mr. Stutler’s risk of future violence appears to be within 

the moderate range at the present.” (Psycho-Diagnostic Report, p.29). She also noted 

that appellant’s “mental illness constitutes a substantial disorder of thought, mood and 

perception” that can “grossly impair[ ] his judgement and behavior and the capacity to 

recognize reality. It also impairs his ability to meet the ordinary demands of life.” (PsychoDiagnostic Report, p.29). She notes his compliance with his medication and his 

improvement since his commitment and concludes that “[i]t is my opinion, with reasonable 

psychological certainly, that the least restrictive setting consistent with public safety and 

Mr. Stutler’s treatment needs is commitment to Northcoast Behavioral Healthcare with 

level 4 movement.” Dr. Wood supplemented her opinion by adding several suggested 
Stark County, Case No. 2017CA00094 15 

rules for implementing Level IV privileges while preserving public safety. Despite 

apparent approval for Level IV privileges, Dr. Wood’s hearing testimony contains a 

statement that weakens her support when she states: “My opinion, as indicated in my 

report, was that if the Court deemed it so, that he would be appropriate for Level IV 

movement.” (Transcript, 05/14/17 Hearing, p. 9, lines 18-21). That phrase, “if the Court 

deemed it so” is troubling as it indicates doubt or uncertainty in her opinion or, perhaps, 

recognition that the court must evaluate all of the information provided to it to make a final 

decision. 

{¶28} The report of Dr. West of Northcoast Behavioral Healthcare does little to 

address public safety and instead focuses on the progress of the appellant and what 

would be in his best interest. Revised Code 2945.401(D)(1) mandates that Dr. West 

evaluate “the risks to public safety” prior to submitting an application for a change in 

status, but the only reference to public safety is an oblique reference on page four of the 

report where Dr. West states: “It is my opinion with reasonable medical certainty that, in 

consideration of public safety and Mr. Stutler's liberty interests, the least restrictive setting 

for Mr. Stutter's treatment is continued hospitalization at Northcoast Behavioral 

Healthcare with advancement to Level IV community privileges.” Dr. West did not provide 

any assessment regarding appellant’s future risk of violence and, while her report does 

contain some limitations on the grant of Level IV privileges, those suggestions do not 

incorporate all of the requirements imposed by Dr. Wood’s opinion. Considering R.C. 

2945.40(D)(1)’s requirement that Northcoast behavioral health make a report “after 

evaluating the risk to public safety” the absence of any express reference to that 

evaluation is concerning. 
Stark County, Case No. 2017CA00094 16 

{¶29} We find that the trial court retains its discretion to either approve or 

disapprove the application for a change in status at the conclusion of a hearing under 

R.C. 2945.401(D) and that, in the case sub judice, the trial court did not abuse that 

discretion in finding that appellant continues to be mentally ill, must be confined to 

Northcoast Behavioral Healthcare and that the requested Level IV Privileges create a 

threat to public safety or the safety of an individual and must be denied. 

{¶30} The decision of the Stark County Court of Common Pleas is hereby 

affirmed. Costs are assessed to appellant. 

By: Baldwin, J. 

John Wise, P.J. and 

Gwin, J. concur.