[Cite as State v. McVay, 2018-Ohio-4683.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                Plaintiff-Appellee,               :           No. 17AP-421
                                                          (C.P.C. No. 11CR-3237)
v.                                                :
                                                         (REGULAR CALENDAR)
Steven McVay,                                     :

                Defendant-Appellant.              :




                                            D E C I S I O N

                                  Rendered on November 20, 2018


                On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                Swanson, for appellee. Argued: Valerie Swanson.

                On brief: Priya D. Tamilarasan, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

BROWN, P.J.
        {¶ 1} Steven McVay, defendant-appellant, appeals the judgment of the Franklin
County Court of Common Pleas in which the court found appellant incompetent to stand
trial and not restorable.
        {¶ 2} On June 22, 2011, appellant was indicted on charges of attempted rape with
specification and unlawful sexual conduct with a minor. On August 25, 2011, appellant
filed a motion for a competency evaluation pursuant to R.C. 2945.37. The trial court
granted the motion for a competency evaluation under R.C. 2945.371. Netcare Forensic
Center evaluated appellant and concluded that appellant was mentally ill, was mildly
mentally retarded, was not competent to stand trial, the least restrictive environment to
restore appellant's competence was in a locked civil psychiatric unit, and it was likely
appellant would be restored to competency to stand trial within the time allowed by law.
No. 17AP-421                                                                              2

Subsequently, the court ordered that appellant undergo treatment for a period of one year
at Twin Valley Behavioral Healthcare ("TVBH").
       {¶ 3} On March 23, 2012, TVBH notified the court that appellant was still not
competent to stand trial but there was a substantial probability that he could become
restored to competency with continued treatment at TVBH. On April 17, 2012, the court
ordered appellant to continue treatment.
       {¶ 4} On September 21, 2012, TVBH notified the court that appellant was still not
competent to stand trial and there was no longer a substantial probability that he could
become restored to competency because the statutory timeframes for competency
restoration would soon expire. TVBH recommended appellant continue inpatient
treatment at TVBH.
       {¶ 5} On November 15, 2012, the trial court held a hearing. The court noted
appellant was incompetent to stand trial and the maximum time for treating him had
expired. The court indicated it would retain jurisdiction for a maximum length of eight
years and appellant would be committed to TVBH. It ordered that all further proceedings
would be held pursuant to R.C. 2945.401 and 2945.402.
       {¶ 6} On June 30, 2015, the trial court held a hearing on increasing appellant's
privileges. The court found appellant was still a mentally ill person subject to court
ordered hospitalization. It ordered all further proceedings would be held pursuant to R.C.
2945.401 and 2945.402.
       {¶ 7} On July 11, 2016, appellant requested an evaluation to determine his
competency to stand trial. On September 9, 2016, TVBH issued a report for the trial court.
In that report, Dr. Dennis Eshbaugh opined appellant had mild mental retardation and
serious mental illness, his psychotic disorder was presently well controlled and did not
impair his daily functioning, and he was incompetent to stand trial. The cover letter to the
report, written by David Forman, the TVBH Forensic Admissions and Legal Assurance
Director, indicated that Dr. Eshbaugh concluded appellant was incompetent to stand trial,
and the least restrictive environment for appellant was the civil unit at TVBH.
       {¶ 8} On October 3, 2016, the trial court ordered the Forensic Psychiatry Center
conduct an evaluation on appellant and make findings pursuant to R.C. 2945.371(G). On
October 28, 2016, Netcare Forensic Center submitted a report, pursuant to R.C.
No. 17AP-421                                                                             3

2945.371(G), prepared by Dr. Terrance Kukor, who opined that appellant had a serious
mental illness and an intellectual disability, was incapable of understanding the legal
proceedings against him, and was not capable of assisting counsel in his defense.
       {¶ 9} On November 23, 2016, appellant filed a motion for additional evaluation
claiming Dr. Kukor's report did not include the necessary findings pursuant to R.C.
2945.371(G). Appellant also argued these findings were necessary to determine whether
the trial court had continued jurisdiction, pursuant to R.C. 2945.39, and whether R.C.
2945.371(H) would be applicable. Appellant argued Dr. Kukor's report failed to include a
determination as to whether appellant's mental illness and intellectual disability rises to
the level of institutionalization by court order and it failed to include a recommendation
for the least restrictive treatment needs. The State of Ohio, plaintiff-appellee, filed a
response, claiming R.C. 2945.371(H) was not applicable. On January 13, 2017, the trial
court denied appellant's motion.
       {¶ 10} On April 25, 2017, the trial court conducted a competency hearing at
appellant's request. Drs. Eshbaugh and Kukor testified at the hearing. The two doctors
presented testimony regarding appellant's intellectual abilities and mental health. In
summary, appellant argued the pertinent issue was whether the court could maintain
continued jurisdiction, and although both doctors believed appellant was a person subject
to hospitalization, neither doctor included this finding in his report, which appellant
claimed was a mandatory finding under R.C. 2945.371(G)(3). The state countered that
continued jurisdiction was not at issue at the hearing but, rather, whether appellant was
competent was the only issue.
       {¶ 11} On May 11, 2017, the trial court issued a decision in which it indicated the
purpose of the hearing was to address the status of appellant's competency and the court's
continuing jurisdiction pursuant to R.C. 2945.37 and 2945.401. The court found appellant
was incompetent to stand trial and not restorable. Appellant appeals the trial court's
judgment, asserting the following two assignments of error:
               [I.] THE TRIAL COURT COMMIT[T]ED REVERSIBLE
               ERROR BY FINDING THAT THE TRIAL COURT RETAINS
               JURISDICTION OVER THE APPELLANT.

               [II.] THE TRIAL COURT SUBSTANTIALLY VIOLATED THE
               APPELLANT'S RIGHT TO DUE PROCESS UNDER
No. 17AP-421                                                                              4

               FOURTEENTH AMENDMENT OF THE UNITED STATES
               CONSTITUTION AND ARTICLE I OF THE OHIO
               CONSTITUTION AND COMMITTED SUBSTANTIAL
               PREJUDICE AND PLAIN ERROR IN DENYING
               APPELLANT'S MOTION FOR ADDITIONAL EVALUATION.

      {¶ 12} Appellant argues in his first assignment of error the trial court erred when it
retained jurisdiction over him. Appellant asserts the trial court continued to have
jurisdiction over him until jurisdiction ceased on his final termination of commitment. He
claims the final termination of commitment occurred when there was insufficient
evidence to establish whether he was a mentally ill person subject to court order or a
person with an intellectual disability subject to institutionalization by court order
pursuant to R.C. 2945.401(J)(1)(a).
      {¶ 13} R.C. 2945.401 provides, in pertinent part:

               (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.

               ***

               (C) The department of mental health and addiction services or
               the institution, facility, or program to which a defendant or
               person has been committed under section 2945.39 or 2945.40
               of the Revised Code shall report in writing to the trial court, at
               the times specified in this division, as to whether the
               defendant or person remains a mentally ill person subject to
               court order or a person with an intellectual disability subject
               to institutionalization by court order and, in the case of a
               defendant committed under section 2945.39 of the Revised
               Code, as to whether the defendant remains incompetent to
               stand trial. The department, institution, facility, or program
               shall make the reports after the initial six months of treatment
               and every two years after the initial report is made. The trial
               court shall provide copies of the reports to the prosecutor and
               to the counsel for the defendant or person. Within thirty days
               after its receipt pursuant to this division of a report from the
               department, institution, facility, or program, the trial court
No. 17AP-421                                                                        5

               shall hold a hearing on the continued commitment of the
               defendant or person or on any changes in the conditions of
               the commitment of the defendant or person. The defendant or
               person may request a change in the conditions of
               confinement, and the trial court shall conduct a hearing on
               that request if six months or more have elapsed since the most
               recent hearing was conducted under this section.

               ***

               (F) At any hearing held pursuant to division (C) or (D)(1) or
               (2) of this section, the defendant or the person shall have all
               the rights of a defendant or person at a commitment hearing
               as described in section 2945.40 of the Revised Code.

               (G) In a hearing held pursuant to division (C) or (D)(1) of this
               section, the prosecutor has the burden of proof as follows:

               (1) For a recommendation of termination of commitment, to
               show by clear and convincing evidence that the defendant or
               person remains a mentally ill person subject to court order or
               a person with an intellectual disability subject to
               institutionalization by court order;

               (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.

               ***

               (J)

               (1) A defendant or person who has been committed pursuant
               to section 2945.39 or 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 defendant or 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 defendant or person could have
No. 17AP-421                                                                        6

               received if the defendant or person had been convicted of the
               most serious offense with which the defendant or person is
               charged or in relation to which the defendant or person was
               found not guilty by reason of insanity;

               (c) The trial court enters an order terminating the
               commitment under the circumstances described in division
               (J)(2)(a)(ii) of this section.

               (2)

               (a) If a defendant is found incompetent to stand trial and
               committed pursuant to section 2945.39 of the Revised Code, if
               neither of the circumstances described in divisions (J)(1)(a)
               and (b) of this section applies to that defendant, and if a
               report filed with the trial court pursuant to division (C) of this
               section indicates that the defendant presently is competent to
               stand trial or if, at any other time during the period of the
               defendant's commitment, the prosecutor, the counsel for the
               defendant, or the designee of the department of mental health
               and addiction services or the managing officer of the
               institution or director of the facility or program to which the
               defendant is committed files an application with the trial
               court alleging that the defendant presently is competent to
               stand trial and requesting a hearing on the competency issue
               or the trial court otherwise has reasonable cause to believe
               that the defendant presently is competent to stand trial and
               determines on its own motion to hold a hearing on the
               competency issue, the trial court shall schedule a hearing on
               the competency of the defendant to stand trial, shall give the
               prosecutor, the counsel for the defendant, and the
               department's designee or the managing officer of the
               institution or the director of the facility to which the
               defendant is committed notice of the date, time, and place of
               the hearing at least fifteen days before the hearing, and shall
               conduct the hearing within thirty days of the filing of the
               application or of its own motion. If, at the conclusion of the
               hearing, the trial court determines that the defendant
               presently is capable of understanding the nature and objective
               of the proceedings against the defendant and of assisting in
               the defendant's defense, the trial court shall order that the
               defendant is competent to stand trial and shall be proceeded
               against as provided by law with respect to the applicable
               offenses described in division (C)(1) of section 2945.38 of the
               Revised Code and shall enter whichever of the following
               additional orders is appropriate:
No. 17AP-421                                                                           7

               (i) If the trial court determines that the defendant remains a
               mentally ill person subject to court order or a person with an
               intellectual disability subject to institutionalization by court
               order, the trial court shall order that the defendant's
               commitment to the department of mental health and
               addiction services or to an institution, facility, or program for
               the treatment of intellectual disabilities be continued during
               the pendency of the trial on the applicable offenses described
               in division (C)(1) of section 2945.38 of the Revised Code.

               (ii) If the trial court determines that the defendant no longer
               is a mentally ill person subject to court order or a person with
               an intellectual disability subject to institutionalization by
               court order, the trial court shall order that the defendant's
               commitment to the department of mental health and
               addiction services or to an institution, facility, or program for
               the treatment of intellectual disabilities shall not be continued
               during the pendency of the trial on the applicable offenses
               described in division (C)(1) of section 2945.38 of the Revised
               Code. This order shall be a final termination of the
               commitment for purposes of division (J)(1)(c) of this section.

               (b) If, at the conclusion of the hearing described in division
               (J)(2)(a) of this section, the trial court determines that the
               defendant remains incapable of understanding the nature and
               objective of the proceedings against the defendant or of
               assisting in the defendant's defense, the trial court shall order
               that the defendant continues to be incompetent to stand trial,
               that the defendant's commitment to the department of mental
               health and addiction services or to an institution, facility, or
               program for the treatment of intellectual disabilities shall be
               continued, and that the defendant remains 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.

(Emphasis added.)

      {¶ 14} Here, appellant requested TVBH evaluate him to determine if he was
competent to stand trial pursuant to R.C. 2945.401. He was first examined by Dr.
Eshbaugh, who opined that he was not competent to stand trial. On October 3, 2016, the
trial court then ordered a second evaluation to determine appellant's competency to stand
trial. In doing so, the court ordered the examiner to issue a report complying with R.C.
No. 17AP-421                                                                                8

2945.371(G). Dr. Kukor performed the second evaluation. Both Drs. Eshbaugh and Kukor
submitted written reports.
       {¶ 15} The crux of appellant's argument in his first assignment of error is that
neither Drs. Eshbaugh's nor Kukor's written reports could be used by the trial court
because the reports did not comply with the requirements in R.C. 2945.371(G). Appellant
maintains the written report by Dr. Eshbaugh, to determine whether he was competent to
stand trial, was written pursuant to R.C. 2945.401(J)(2)(a) and must have included the
findings enumerated in R.C. 2945.371(G). Similarly, appellant asserts the report filed by
Dr. Kukor was written pursuant to R.C. 2945.401(C) and had to determine whether
appellant was still subject to the continued jurisdiction of the trial court as a mentally ill
person subject to court order or a person with an intellectual disability subject to
institutionalization by court order, which are findings required by R.C. 2945.371(G).
Additionally, appellant claims that, without any reports that comply with R.C.
2945.371(G), the court had insufficient evidence to make the finding required by R.C.
2945.39(A)(2) that appellant was a mentally ill person subject to court order or a person
with an intellectual disability subject to institutionalization by court order.
       {¶ 16} The state first counters the trial court's hearing was not to determine
whether appellant's commitment should terminate under R.C. 2945.401(C), and the court
did not make any determination under R.C. 2945.401(J) that appellant is no longer a
mentally ill person subject to court order or no longer a person with an intellectual
disability subject to institutionalization. Instead, the state contends, the sole purpose of
the hearing was to address appellant's competency. The state further counters that, even if
the hearing was, pursuant to R.C. 2945.401(C), the evaluation requirements in R.C.
2945.371(G) do not apply at this stage of the proceedings but apply only to pre-
commitment competency evaluations. The state maintains that R.C. 2945.39(D)(3)
demonstrates once appellant was committed, pursuant to R.C. 2945.39(D)(1), R.C.
2945.401 became the controlling statute and sets forth the procedures for contesting
continued commitment, conditions of commitment, and competency. The state contends
appellant improperly challenged his continued commitment by requesting and receiving a
report pursuant to R.C. 2945.371, instead of 2945.401.
No. 17AP-421                                                                                                     9

        {¶ 17} We agree with the state that R.C. 2945.39(D)(3) requires that, subsequent
to an initial determination of commitment pursuant to R.C. 2945.39,1 all further
proceedings shall be in accordance with R.C. 2945.401 and 2945.402.                               See State v.
Williams, 126 Ohio St.3d 65, 68 (2010). R.C. 2945.39(D)(3) reads:
                 If a court makes a commitment under division (D)(1) of this
                 section, all further proceedings shall be in accordance with
                 sections 2945.401 and 2945.402 of the Revised Code.



1 R.C. 2945.39, entitled "Proceedings after expiration of maximum time for treatment after finding of
incompetency," provides, in pertinent part:

(A) If a defendant who is charged with an offense described in division (C)(1) of section 2945.38 of the
Revised Code is found incompetent to stand trial, after the expiration of the maximum time for treatment as
specified in division (C) of that section or after 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, one of the following applies:

***

(2) On the motion of the prosecutor or on its own motion, the court may retain jurisdiction over the
defendant if, at a hearing, the court finds both of the following by clear and convincing evidence:

(a) The defendant committed the offense with which the defendant is charged.

(b) The defendant is a mentally ill person subject to court order or a person with an intellectual disability
subject to institutionalization by court order.

***

(D)

(1) If the court conducts a hearing as described in division (A)(2) of this section and if the court makes the
findings described in divisions (A)(2)(a) and (b) of this section by clear and convincing evidence, the court
shall commit the defendant, if determined to require mental health treatment, either to the department of
mental health and addiction services for treatment at 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. Prior to placing the defendant, the department of mental health and addiction
services shall obtain court approval for that placement. If the court conducts such a hearing and if it makes
those findings by clear and convincing evidence, the court shall commit the defendant, if determined to
require treatment for an intellectual disability, to a facility operated by the department of developmental
disabilities, or another facility, as appropriate. In determining the place of commitment, the court shall
consider the extent to which the person is a danger to the person and to others, the need for security, and the
type of crime involved and shall order the least restrictive alternative available that is consistent with public
safety and the welfare of the defendant. In weighing these factors, the court shall give preference to
protecting public safety.

***

(3) If a court makes a commitment under division (D)(1) of this section, all further proceedings shall be in
accordance with sections 2945.401 and 2945.402 of the Revised Code.
No. 17AP-421                                                                              10

       {¶ 18} Appellant specifically argues that the doctors' reports, presented to the trial
court for consideration in making a determination pursuant to R.C. 2945.401(J), were
insufficient to support a finding that appellant was a mentally ill person subject to court
order or with an intellectual disability subject to institutionalization by court order
because the reports did not comply with R.C. 2945.371.
       {¶ 19} R.C. 2945.371, entitled "Evaluations of defendant's mental condition at
relevant time; separate mental retardation evaluation," effective October 12, 2016,
provides, 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.

               ***

               (G) The examiner shall file a written report with the court
               within thirty days after entry of a court order for evaluation,
               and the court shall provide copies of the report to the
               prosecutor and defense counsel. The report shall include all
               of the following:

               (1) The examiner’s findings;

               (2) The facts in reasonable detail on which the findings are
               based;

               (3) If the evaluation was ordered to determine the
               defendant’s competence to stand trial, all of the following
               findings or recommendations that are applicable:

               (a) Whether the defendant is capable of understanding the
               nature and objective of the proceedings against the
               defendant or of assisting in the defendant’s defense;

               (b) If the examiner’s opinion is that the defendant is
               incapable of understanding the nature and objective of the
               proceedings against the defendant or of assisting in the
               defendant’s defense, whether the defendant presently is
               mentally ill or has an intellectual disability and, if the
               examiner’s opinion is that the defendant presently has an
No. 17AP-421                                                                                               11

                intellectual disability, whether the defendant appears to be a
                person with an intellectual disability subject to
                institutionalization by court order;

                (c) If the examiner’s opinion is that the defendant is
                incapable of understanding the nature and objective of the
                proceedings against the defendant or of assisting in the
                defendant’s defense, the examiner’s opinion as to the
                likelihood of the defendant becoming capable of
                understanding the nature and objective of the proceedings
                against the defendant and of assisting in the defendant’s
                defense within one year if the defendant is provided with a
                course of treatment;

                (d) If the examiner’s opinion is that the defendant is
                incapable of understanding the nature and objective of the
                proceedings against the defendant or of assisting in the
                defendant’s defense and that the defendant presently is
                mentally ill or has an intellectual disability, the examiner’s
                recommendation as to the least restrictive placement or
                commitment alternative, consistent with the defendant’s
                treatment needs for restoration to competency and with the
                safety of the community.

        {¶ 20} As noted previously, R.C. 2945.39(D)(3) requires proceedings subsequent to
an initial commitment to be in accordance with R.C. 2945.401 and 2945.402.                                 In
reviewing R.C. 2945.401, we find no references to R.C. 2945.371(G) nor any indication
that compliance with R.C. 2945.371(G) is required. Furthermore, appellant did not direct
us to any portion of R.C. 2945.401 or any case law that requires compliance with R.C.
2945.371(G) after an initial commitment. Rather, in his appellate brief, appellant only
asserts without citation to authority, that compliance with R.C. 2945.371(G) was required.
        {¶ 21} In addition to noting appellant's lack of authority in support of his
argument, we note that section (E)2 of R.C. 2945.401 outlines criteria that a trial court

2 R.C. 2945.401(E) provides: "In making a determination under this section regarding nonsecured status or
termination of commitment, the trial court shall consider all relevant factors, including, but not limited to,
all of the following:
(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;
(2) Psychiatric and medical testimony as to the current mental and physical condition of the defendant or
person;
(3) Whether the defendant or person has insight into the defendant’s or person’s condition so that the
defendant or person will continue treatment as prescribed or seek professional assistance as needed;
(4) The grounds upon which the state relies for the proposed commitment;
No. 17AP-421                                                                                                   12

shall consider in making a determination under R.C. 2945.401 regarding termination of
commitment. However, no reference is made to R.C. 2945.371. We also note, as pointed
out by the state, that R.C. 2945.371(G)(3)(c) requires an opinion as to the likelihood a
defendant will become competent within one year if provided with a course of treatment,
which would only be applicable to pre-commitment competency proceedings under R.C.
2945.38(B)(1)(a).
        {¶ 22} Although the trial court's hearing and determination at issue here were
pursuant to R.C. 2945.401, the trial court, on October 3, 2016, ordered an evaluation be
conducted and make findings pursuant to R.C. 2945.371(G). It is not clear why the court
required such compliance; however, there appears to be no prohibition on a trial court
using R.C. 2945.371 as a guide for what it would like to be included in psychological
evaluations      it   considers       in    making      post-initial      commitment         determinations.
Nevertheless, we cannot find R.C. 2945.401 requires that such evaluations comply with
R.C. 2945.371(G). Therefore, appellant's contention that the trial court could not rely on
the psychological evaluations provided by Drs. Eshbaugh and Kukor due to the failure of
these reports to comply with R.C. 2945.371 is not well-taken. Appellant's first assignment
of error is overruled.
        {¶ 23} Appellant argues in his second assignment of error the trial court violated
his right to due process and committed plain error when it denied his motion for an
additional evaluation. On November 23, 2016, appellant filed a motion for additional
evaluation of his mental health. Appellant's motion was based on his contention that Dr.
Kukor failed to address the findings required by R.C. 2945.371(G). However, given our
determination that there was no statutory requirement Dr. Kukor's report had to comply
with R.C. 2945.371(G), we find there was no error here. For this reason, we overrule
appellant's second assignment of error.



(5) Any past history that is relevant to establish the defendant’s or person’s degree of conformity to the laws,
rules, regulations, and values of society;
(6) If there is evidence that the defendant’s or person’s mental illness is in a state of remission, the medically
suggested cause and degree of the remission and the probability that the defendant or person will continue
treatment to maintain the remissive state of the defendant’s or person’s illness should the defendant’s or
person’s commitment conditions be altered."
No. 17AP-421                                                                      13

      {¶ 24} Accordingly, we overrule appellant's two assignments of error and affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                 Judgment affirmed.

                   DORRIAN and LUPER SCHUSTER, JJ., concur.

                          _______________________
