[Cite as State v. Meyer, 2019-Ohio-4234.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. 18CA113
                                                :
 NATHAN MEYER                                   :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Mansfield Municipal
                                                    Court, Case No. 2018CRB00129



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             October 10, 2019




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 JOSEPH R. REED                                     RANDALL E. FRY
 Mansfield Law Department                           10 West Newlon Place
 30 North Diamond Street                            Mansfield, OH 44902
 Mansfield, OH 44902
Richland County, Case No. 18CA113                                                        2

Delaney, J.

       {¶1} Appellant Nathan Meyer appeals from the July 25, 2018 Journal

Entry/Sentencing Order of the Mansfield Municipal Court. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose on January 12, 2018, when appellant threatened an

emergency-room doctor and hospital staff. Police responded and appellant made erratic

statements. The doctor feared for his safety and others because he wasn’t sure what

appellant might be capable of. Police therefore arrested and transported appellant.

       {¶3} Appellant was charged by criminal complaint with one count of menacing,

a misdemeanor of the fourth degree pursuant to Mansfield Codified Ordinance No.

537.06(A).1

       {¶4} Appellant entered a plea of not guilty by reason of insanity and requested

that the trial court appoint an examiner to determine his competency to stand trial

pursuant to R.C. 2945.37 and to evaluate his mental condition at the time of the offense

pursuant to R.C. 2945.39. The trial court granted the motion on April 11, 2018 and

referred the matter to the District V—Forensic Diagnostic Center.




1      Mansfield Codified Ordinance 537.06(A) states in pertinent part: “No person shall
knowingly cause another to believe that the offender will cause physical harm to the
person or property of the other person * * *. In addition to any other basis for the other
person’s belief that the offender will cause physical harm to the person or property of the
other person, the other person’s unborn, or a member of the other person’s immediately
family, the other person’s belief may be based on words or conduct of the offender that
are directed at or identify a corporation, association or other organization that employs
the other person or to which the other person belongs.”
Richland County, Case No. 18CA113                                                             3


       {¶5} On May 22, 2018, appellant moved for appointment of an independent

psychologist, specifically, Dr. Robert Stinson. The trial court overruled the motion on May

29, 2018.

       {¶6} On July 25, 2018, appellant entered a plea of guilty to the amended count

of disorderly conduct pursuant to Mansfield Codified Ordinance No. 509.03(A).2 A jail

term of 30 days was suspended on the condition that, e.g., appellant would be interviewed

and assessed for mental health court.

       {¶7} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

       {¶8} “THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO NOTIFY

THE INDIGENT APPELLANT OF HIS RIGHT TO AN INDEPENDENT SANITY

EVALUATION PURSUANT TO O.R.C. 2945.39.”




2 Mansfield Codified Ordinance No. 539.03(A) states:
No person shall recklessly cause inconvenience, annoyance or alarm to another by doing
any of the following:
(1) Engaging in fighting, in threatening harm to persons or property, or in violent or
turbulent behavior;
(2) Making unreasonable noise or offensively coarse utterance, gesture or display, or
communicating unwarranted and grossly abusive language to any person, which by its
very utterance or usage inflicts injury or tends to incite an immediate breach of the peace;
(3) Insulting, taunting or challenging another, under circumstances in which such
conduct is likely to provoke a violent response;
(4) Hindering or preventing the movement of persons on a public street, road, highway
or right of way, or to, from, within or upon public or private property, so as to interfere with
the rights of others, and by any act that serves no lawful and reasonable purpose of the
offender;
(5) Creating a condition that is physically offensive to persons or that presents a risk of
physical harm to persons or property, by any act that serves no lawful and reasonable
purpose of the offender.
Richland County, Case No. 18CA113                                                        4


                                       ANALYSIS

       {¶9} In his sole assignment of error, appellant argues the trial court was required

to notify appellant of his right to an independent sanity evaluation prior to his change of

plea. We disagree.

       {¶10} We begin by noting appellant cites R.C. 2945.39(A) and (C) as support for

his argument that the trial court must inform appellant of his right to an independent

psychological evaluation.   R.C. 2945.39 is the civil commitment statute; the current

version of that statute does not contain the language appellant cites.

       {¶11} R.C. 2945.371 address evaluation of mental condition and states in

pertinent part:

                     (A) If the issue of a defendant's competence to stand trial is

              raised or if a defendant enters a plea of not guilty by reason of

              insanity, the court may order one or more evaluations of the

              defendant's present mental condition or, in the case of a plea of not

              guilty by reason of insanity, of the defendant's mental condition at

              the time of the offense charged. An examiner shall conduct the

              evaluation.

                     (B) If the court orders more than one evaluation under division

              (A) of this section, the prosecutor and the defendant may

              recommend to the court an examiner whom each prefers to perform

              one of the evaluations. If a defendant enters a plea of not guilty by

              reason of insanity and if the court does not designate an examiner

              recommended by the defendant, the court shall inform the defendant
Richland County, Case No. 18CA113                                                        5


             that the defendant may have independent expert evaluation and that,

             if the defendant is unable to obtain independent expert evaluation, it

             will be obtained for the defendant at public expense if the defendant

             is indigent.

                    * * * *.

       {¶12} Appellant argues that the trial court had a mandatory duty to inform him of

a right to an independent psychiatric evaluation, citing State v. Hix, 2nd Dist. Montgomery

No. 10159, 1987 WL 19208, *3. That decision, however, was explicitly overruled by the

Ohio Supreme Court in State v. Hix, 38 Ohio St.3d 129, 527 N.E.2d 784 (1988), in which

the Court found that “[a] defendant does not have the right to an independent psychiatric

examiner, pursuant to [former] R.C. 2945.39(C), unless the trial court has ordered more

than one psychiatric evaluation and the trial court has refused to appoint an examiner

recommended by the defendant.” Id., syllabus.

       {¶13} In the instant case, the trial court did not order more than one psychiatric

evaluation. Instead, pursuant to its authority via R.C. 2945.37(H), the trial court ordered

a single evaluation by the District V—Forensic Diagnostic Center.3

       {¶14} Appellant has not met the first Hix threshold in establishing his right to an

independent psychiatric examiner because the trial court ordered a single evaluation. “A

defendant does not have the right to an independent psychiatric examiner, pursuant to

R.C. 2945.39(C), unless the trial court has ordered more than one psychiatric evaluation




3 R.C. 2945.37(H) states in pertinent part that psychiatric evaluations ordered by
municipal court “shall be performed through community resources including, but not
limited to, certified forensic centers, court probation departments, and community mental
health services providers * * *.”
Richland County, Case No. 18CA113                                                        6

and the trial court has refused to appoint an examiner recommended by the defendant.”

(Emphasis sic.) State v. Asberry, 64 Ohio App.3d 314, 318, 581 N.E.2d 592, 594 (5th

Dist.1989), citing Hix, supra, at the syllabus.   We therefore conclude the trial court did

not err in failing to inform appellant of his right to an independent examiner because no

such right existed.

       {¶15} Appellant’s sole assignment of error is overruled.

                                      CONCLUSION

       {¶16} Appellant’s sole assignment of error is overruled and the judgment of the

Mansfield Municipal Court is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.
