[Cite as State v. Wright, 2020-Ohio-1271.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                             No. 108343
                 v.                                :

ORTLEY WRIGHT,                                     :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED IN PART AND REMANDED
                 RELEASED AND JOURNALIZED: April 2, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-627155-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Melissa Riley, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Erika B. Cunliffe, Assistant Public Defender, for
                 appellant.


PATRICIA ANN BLACKMON, J.:

                   Ortley Wright (“Wright”) appeals from the trial court’s judgment and

assigns the following errors for our review:
      I.     The court’s conclusion that Mr. Wright should permanently
             remain under court supervision violates due process because it
             is not sufficiently supported by the evidence presented.

      II.    The trial court erred when it failed to dismiss the SVP
             specification in Mr. Wright’s indictment in the wake of
             information that they were prohibited under the state and
             federal constitutions’ ex post facto clauses.

               Having reviewed the record and pertinent law, we reverse the trial

court’s judgment in part and remand this case for proceedings consistent with this

opinion. The apposite facts follow.

               On March 26, 2018, Wright was indicted for various offenses related

to two alleged rapes that occurred in 1998 and 2001, respectively. Specifically,

Wright was indicted as follows for an incident that occurred on March 28, 1998:

rape in violation of R.C. 2907.02(A)(2), a first-degree felony; kidnapping in violation

of R.C. 2905.01(A)(4), a first-degree felony; and two counts of aggravated burglary

in violation of R.C. 2911.11(A)(1), both first-degree felonies. Additionally, Wright

was indicted as follows for an incident that occurred on July 7, 2001: two counts of

rape in violation of R.C. 2907.02(A)(2), both first-degree felonies; and kidnapping

in violation of R.C. 2905.01(A)(4), a first-degree felony.       Wright’s indictment

included sexual motivation and sexually violent predator specifications.

               On June 28, 2018, the trial court ordered Wright to undergo a

psychiatric evaluation to determine his competency to stand trial. The court issued

a journal entry on August 27, 2018, which referenced an August 10, 2018 psychiatric

report finding Wright incompetent but restorable. The court ordered Wright “to in-
patient treatment for competency restoration at North Coast Behavioral Health

under the supervision of the court evaluation unit.”

               On February 20, 2019, the court held a hearing based on a January 7,

2019 report from the Cuyahoga County Court Psychiatric Clinic indicating that

Wright was incompetent and unrestorable.

               Ohio Bureau of Criminal Investigation Special Agent Lindsay Mussell

(“Agent Mussell”) testified that she is assigned to the Cuyahoga County Sexual

Assault Cold Case Task Force. She investigated a 1998 sexual assault that B.W.

reported to the Cleveland police. According to Agent Mussell, B.W. was sexually

assaulted by Wright, whom she had met when they were both patients at a hospital.

               The 1998 police report stated that Wright went to B.W.’s house, but

B.W. did not want him there. Wright asked to use the phone, but B.W. refused.

According to this report, Wright then forced his way into the house, took B.W.

against her will to the bedroom, and raped her vaginally.

               After the incident, B.W. went to the hospital where a rape kit was

performed. B.W. was uncooperative with police at the time, and this kit went

untested until recently. On February 26, 2018, the DNA from the rape kit was

compared to a DNA standard voluntarily taken from Wright, and the result was that

Wright “is included to be rarer than one in one trillion.”

               Agent Mussell testified that she interviewed B.W., who stated that she

and Wright exchanged contact information when they were patients at a hospital.

After they both were released, Wright came to where B.W. lived and stayed “for an
evening or two.” Ultimately, Wright became disruptive, refusing to leave or leaving

and forcing his way back into the house. According to Agent Mussell, “[t]here was a

physical altercation in the house that occurred, and the sexual assault followed

shortly thereafter.”

               Agent Mussell also testified that she interviewed Wright, who

indicated “that he knew [B.W.], they had dated, and that [the sex] was consensual.”

Wright told Agent Mussell that he met B.W. while they were patients at the hospital,

trying “to get off the drugs.” After they were discharged they would get high

together. Wright told Agent Mussell that he did not recall a physical assault between

him and B.W.

               Agent Mussell next testified that she investigated a police report made

by L.M. in 2001. “[L.M.] reported she was a patient at a hospital, and that she was

forced into her room and * * * forcibly vaginally and anally raped by Mr. Wright.”

According to Agent Mussell, she did not interview L.M. as part of this investigation,

because L.M. passed away in 2007. L.M. had a rape kit performed, but the results

“found no male DNA in either her vagina or her anus.” Agent Mussell interviewed

Wright about L.M.’s 2001 accusation, and he stated that L.M. “did not look familiar

to him * * * and he denied having sex with her.”

               Based on Agent Mussell’s testimony, the court found Wright “guilty,”

under a clear and convincing evidence standard, of all charges as indicted including

the sexually violent predator specifications. On February 26, 2019, the court issued

a journal entry that further found as follows:
      The court finds by clear and convincing evidence both that the
      defendant committed the offense with which defendant is charged and
      that defendant is [a] mentally ill person and/or developmentally
      disabled person subject to hospitalization and/or institutionalization
      by court order.

      Defendant is hereby ordered to Northcoast Behavioral Healthcare,
      South Campus, as the least restrictive treatment setting.

              It is from this order that Wright appeals.

Incompetent to stand trial and unrestorable

              R.C. 2945.39

      authorizes a common pleas court to exercise continuing jurisdiction
      over a criminal defendant who has been charged with a violent first- or
      second-degree felony and who has been found incompetent to stand
      trial” if “the court finds that there is not a substantial probability that
      the defendant will become competent to stand trial even if the
      defendant is provided with a course of treatment * * *.

State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 1; R.C.

2945.39(A).

              “To retain jurisdiction, the trial court must find, by clear and

convincing evidence after a hearing, both that the defendant committed the charged

offense and that the defendant is a mentally ill person subject to hospitalization by

court order. R.C. 2945.39(A)(2)(a) and (b).” Williams at ¶ 13.

      Clear and convincing evidence is that measure or degree of proof which
      will produce in the mind of the trier of facts a firm belief or conviction
      as to the allegations sought to be established. It is intermediate, being
      more than a preponderance, but not to the extent of such certainty as
      is required beyond a reasonable doubt as in criminal cases.

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

              Pursuant to R.C. 2945.39(B)
       In making its determination under division (A)(2) of this section as to
       whether to retain jurisdiction over the defendant, the court may
       consider all relevant evidence, including, but not limited to, any
       relevant psychiatric, psychological, or medical testimony or reports, the
       acts constituting the offense charged, and any history of the defendant
       that is relevant to the defendant’s ability to conform to the law.

               Additionally, the Williams Court held that “R.C. 2945.39 is a civil

statute. Consequently, a person committed under the statute need not be afforded

the constitutional rights afforded to a defendant in a criminal prosecution.”

Williams at ¶ 37.

               Under R.C. 2945.39(C), if the court does not make the (A)(2)(a) and

(b) findings by clear and convincing evidence, “the court shall dismiss the

indictment, information, or complaint against the defendant. Upon the dismissal,

the court shall discharge the defendant unless the court or prosecutor files an

affidavit in probate court for civil commitment of the defendant * * *.” The statute

also notes that a “dismissal of charges under this division is not a bar to further

criminal proceedings based on the same conduct.” Id.

               In the case at hand, the state and the defense stipulated to the

psychiatric report that Wright was incompetent and unrestorable. On appeal,

Wright challenges “whether there was evidence clearly and convincingly

demonstrating that he committed the charged offenses” in the 2001 alleged rape of

L.M.

               Wright argues that the clear and convincing evidence standard

“require[s] more than a prosecutor asking her investigator to read into the record
an 18-year-old police report containing statements from a now deceased but

formerly mentally ill complainant and call it a day.” Upon review, we find that L.M.’s

narrative of the incident is not only stale and uncorroborated, it is contradicted by

the rape-kit results showing no physical injuries to L.M.’s body and no male DNA

found on L.M.’s swabs. Therefore, we cannot say that the state presented clear and

convincing evidence that Wright committed the 2001 rapes and kidnapping.

Compare State v. Decker, 10th Dist. Franklin No. 16AP-684, 2017-Ohio-4266, ¶ 25

(the confession of “a semi-hysterical intellectually disabled man” and corroborating

testimony amounting to hearsay about a minor-victim’s statements “cast doubt

about whether the trial court had before it clear and convincing evidence that Decker

committed the offenses with which he was charged”).

              Upon review, we conclude that the trial court erred in finding by clear

and convincing evidence that Wright committed the 2001 offenses concerning L.M.

Accordingly, Wright’s first assigned error is sustained.

Sexually Violent Predator Specification

              Pursuant to R.C. 2971.01(H)(1), a sexually violent predator “means a

person who, on or after January 1, 1997, commits a sexually violent offense and is

likely to engage in the future in one or more sexually violent offenses.” Pursuant to

R.C. 2971.01(H)(2)

      [T]he following factors may be considered as evidence tending to
      indicate that there is a likelihood that the person will engage in the
      future in one or more sexually violent offenses:
      (a) The person has been convicted two or more times, in separate
      criminal actions, of a sexually oriented offense or a child-victim offense.
      ***

      (b) The person has a documented history from childhood, into the
      juvenile developmental years, that exhibits sexually deviant behavior.

      (c) Available information or evidence suggests that the person
      chronically commits offenses with a sexual motivation.

      (d) The person has committed one or more offenses in which the
      person has tortured or engaged in ritualistic acts with one or more
      victims.

      (e) The person has committed one or more offenses in which one or
      more victims were physically harmed to the degree that the particular
      victim’s life was in jeopardy.

      (f) Any other relevant evidence.

              Wright argues that the sexually violent predator specifications should

be dismissed pursuant to State v. Frierson, 8th Dist. Cuyahoga No. 106841, 2019-

Ohio-317, in which this court held that it was unconstitutional to apply the current

version of the specification to offenders whose crimes were committed prior to April

29, 2005, when R.C. 2971.01(H) was amended. This case was accepted for review

by the Ohio Supreme Court and a decision is pending.1

              However, upon review, we conclude that the trial court erred by

finding Wright “guilty” of the sexually violent predator specification. Assuming

arguendo that Wright committed a sexually violent offense against B.W., there is no




      1See State v. Frierson, Ohio Supreme Court No. 2019-0899 and State v.
Townsend, Ohio Supreme Court No. 2019-0606.
evidence in the record that Wright is likely to engage in a sexually violent offense in

the future.

               In State v. Williams, ¶ 1, the Ohio Supreme Court found that “R.C.

2945.39 is a civil statute.” Therefore, Wright has not been “convicted” of any

sexually oriented offenses. See State v. Jones, 1st Dist. Hamilton No. C-160735,

2017-Ohio-5517, ¶ 19 (in reviewing whether the trial court erred by deciding to retain

jurisdiction under R.C. 2945.39, the appellate court concluded that “Jones was not

actually convicted of any crime”). Therefore, there is no evidence that Wright “has

been convicted two or more times, in separate criminal actions, of a sexually

oriented offense * * *” pursuant to R.C. 2971.01(H)(2)(a).

               Furthermore, no evidence was presented to show that Wright

“exhibits sexually deviant behavior, * * * chronically commits offenses with a sexual

motivation,” tortured or engaged in ritualistic acts with a victim, or physically

harmed a victim “to the degree that the particular victim’s life was in jeopardy.”

Additionally, the state presented no evidence that Wright had any involvement with

the criminal justice system other than this case.     Accordingly, the state failed to

present clear and convincing evidence that Wright is a sexually violent predator and

his second assigned error is sustained.

               Additionally, assuming without deciding that there was clear and

convincing evidence of Wright committing the 2001 rape of L.M., we are bound by

our precedent in State v. Frierson, 8th Dist. Cuyahoga No. 106841, 2019-Ohio-317,

to vacate the trial court’s finding Wright “guilty” of the sexually violent predator
specifications. In Frierson, this court reviewed the application of R.C. 2971.01, as

amended by the legislature in 2005, to crimes that occurred prior to 2005, and

whether this retroactive application violated the Ex Post Facto Clause of the United

States Constitution and the Retroactivity Clause of the Ohio Constitution.

                  The difference between the sexually violent predator specification

statute before and after the 2005 amendment is that “[i]t is now no longer necessary

for a sex offender to have a prior conviction of a sexually violent offense in order to

satisfy the sexually violent predator specification.” Frierson at ¶ 10. In other words,

after the amendment, all the sexually violent offenses needed to satisfy the sexually

violent predator specification could be found in the same indictment. The Frierson

Court held this sentencing enhancement could not be applied to the defendant,

because he was not subject to this enhanced punishment at the time of the offenses.

Id. at ¶ 11-12.

                  In the case at hand, both alleged incidents occurred prior to 2005;

therefore, in following Frierson, applying the current version of the sexually violent

predator specification to Wright would be unconstitutional.           See DeMell v.

Cleveland Clinic Found., 8th Dist. Cuyahoga No. 88505, 2007-Ohio-2924, ¶ 30

(“under the doctrine of stare decisis we are required to adhere to the rule adopted

and applied in our prior decisions”).
Conclusion

                  Under R.C. 2945.39(C), if the trial court does not make the statutory

findings by clear and convincing evidence, the charges2 shall be dismissed. The trial

court’s finding that Wright committed the following offenses is reversed: the 2001

rapes in counts five and six, the 2001 kidnapping in count seven, and the sexually

violent predator specifications in all counts in which it is included. This case is

remanded to the trial court with instructions to dismiss these charges and

specifications.

      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. Case remanded to the

trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., DISSENTS
WITH SEPARATE OPINION


      2 R.C. 2945.39(C) states that “the court shall dismiss the indictment, information,
or complaint against the defendant” if the court does not make the (A)(2)(a) and (b)
findings by clear and convincing evidence. In the case at hand, Wright does not challenge
the charges associated with the 1998 rape of B.W. (other than the sexually violent
predator specification).
SEAN C. GALLAGHER, P.J., DISSENTING:

               I respectfully dissent. In the first assignment of error, Wright claims

that the trial court erred in finding clear and convincing evidence of one of the two

crimes he allegedly committed in 1998 and 2001. In this case, Wright was charged

with two first-degree felony rape counts for separate acts that occurred in 1998 and

2001. The fact that Wright has not challenged both convictions means any decision

we render with respect to the 2001 conviction is purely advisory — it does not alter

the trial court’s conclusion to retain jurisdiction and remand Wright for further

treatment under R.C. 2945.39 solely based on the 1998 crimes. Even if there were

not clear and convincing evidence of the 2001 crime, that count would be dismissed

subject to further criminal prosecution should Wright’s competency or sanity be

restored under the treatment imposed for the 1998 crime. R.C. 2945.39(C) (“A

dismissal of charges under this division is not a bar to further criminal proceedings

based on the same conduct.”). Thus, there is no remedy that can be offered in light

of the clear and convincing evidence offered in support of the 1998 rape crime (the

DNA evidence from a home invasion series of events) — Wright is still subject to the

continuing jurisdiction of the trial court under R.C. 2945.39. The first assignment

of error is moot.

               Wright is challenging the SVP specification for the purposes of R.C.

2945.39 and the succeeding termination date of the involuntary commitment under

R.C. 2945.401(J)(1)(b), which provides that the most serious offense with which the

offender is charged forms the basis of one of the possible termination dates. With
respect to his purported termination date under R.C. 2945.401(J)(1), we cannot

resolve that issue in the pending appeal. Any decision we would render about the

presumptive termination date of the civil commitment, which is possibly based on

the longest term of imprisonment Wright faced on the most serious felony count

under R.C. 2945.401(J)(1)(b), would be advisory at this time.          Under R.C.

2945.401(J)(1), an offender committed under R.C. 2945.39 continues under the

jurisdiction of the trial court until the earlier of three dates, only one of which

involves the maximum prison term or term of imprisonment. Importantly for our

purposes, under R.C. 2945.401(J)(a) or (c), the trial court could conclude that

Wright is no longer subject to institutionalization or his competency to stand trial

for the pending charges was restored long before the expiration of the maximum

prison term for the 1998 charges. If that were to occur, our conclusion on the

maximum prison sentence would be completely advisory.
