[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Rohrer v. Holzapfel, Slip Opinion No. 2016-Ohio-7827.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-7827
 THE STATE EX REL. ROHRER, APPELLANT, v. HOLZAPFEL, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State ex rel. Rohrer v. Holzapfel, Slip Opinion No.
                                     2016-Ohio-7827.]
Mandamus and procedendo—Case is moot and does not fall under mootness
        exception for issues capable of repetition yet evading review—Court of
        appeals’ dismissal of petition affirmed.
  (No. 2016-0304—Submitted August 16, 2016—Decided November 22, 2016.)
        APPEAL from the Court of Appeals for Ross County, No. 15CA3508.
                                 _____________________
        Per Curiam.
        {¶ 1} We affirm the Fourth District Court of Appeals’ dismissal of the
petition for writs of mandamus and procedendo filed by appellant, John J. Rohrer.
        {¶ 2} The case is moot, because the stay placed on consideration of Rohrer’s
2015 motion has been lifted and the trial court is considering it. Moreover, the case
does not meet the “capable of repetition yet evading review” exception to mootness.
                             SUPREME COURT OF OHIO




                           Facts and Procedural History
       {¶ 3} Rohrer was the defendant in a criminal case in which he was found
not guilty of felonious assault by reason of insanity and was also found to be a
“mentally ill person subject to hospitalization by court order.” Multiple hearings
have been conducted over the years regarding Rohrer’s continued commitment.
       {¶ 4} In 2014, Rohrer filed a motion (the “2014 motion”) asserting that the
trial court lacked authority to order his original commitment in 2010 because he
was not a “mentally ill person subject to court order” within the meaning of R.C.
2945.40. After holding a hearing, the trial court found that Rohrer continued to be
mentally ill and subject to court-ordered hospitalization. Rohrer appealed the trial
court’s ruling to the court of appeals.
       {¶ 5} In March 2015, nearly six months after the hearing on the 2014
motion, Rohrer filed a motion to terminate his involuntary confinement (the “2015
motion”), based on his contention that he was no longer mentally ill. Rohrer
contends that he is not and has not been mentally ill, at least since the time that his
forced medication ended.
       {¶ 6} In July 2015, more than 120 days after he filed the 2015 motion,
Rohrer filed a motion for default judgment. After holding a hearing on the default-
judgment motion in September 2015, the court issued an order declaring that the
issues raised in the 2015 motion were the same issues raised in Rohrer’s appeal
from the denial of the 2014 motion and stayed the action pending the outcome of
that appeal.
       {¶ 7} On October 7, 2015, Rohrer filed in the court of appeals a petition for
writs of mandamus and procedendo, requesting that appellee, Judge Leonard
Holzapfel of the Court of Common Pleas of Ross County, be ordered to either grant
or hold a hearing on the 2015 motion. While Rohrer continues to question the trial
court’s jurisdiction over his original case, he argues that the 2015 motion was based
exclusively on his mental status after the September 2014 hearing. He claims that




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the stay imposed on the appeal of the 2014 motion violated his right to a hearing
on the conditions of his confinement every six months as required under R.C.
2945.401(C) and (J)(1)(a) and 2945.40. He also claims that the hearing should be
conducted before a jury, in his presence, and on the record.
       {¶ 8} The court of appeals ultimately affirmed the trial court’s denial of the
2014 motion, State v. Rohrer, 2015-Ohio-5333, 54 N.E.3d 654 (4th Dist.), and we
declined jurisdiction, 145 Ohio St.3d 1459, 2016-Ohio-2807, 49 N.E.3d 321.
       {¶ 9} In February 2016, the court of appeals dismissed Rohrer’s petition for
writs of mandamus and procedendo. The court determined that Rohrer’s request
for a writ of procedendo was arguably moot, because its judgment affirming the
trial court’s denial of the 2014 motion had acted to terminate Judge Holzapfel’s
stay of consideration of the 2015 motion. The court of appeals further determined
that the issue raised in the case was capable of repetition yet evading review;
therefore, the court considered the merits of Rohrer’s petition.         Ultimately
concluding that Judge Holzapfel had not abused his discretion in issuing the stay,
the court denied the requested writs. Rohrer appealed.
                                     Analysis
Mootness
       {¶ 10} In a motion filed July 5, 2016, Rohrer argues that the case is not moot
for two reasons. First, he asserts that Judge Holzapfel “continue[s] to refuse to
rule” on his motion for a default judgment or to provide the requested hearing on
the 2015 motion.      Second, he argues that the issue of Judge Holzapfel’s
“interference” with Rohrer’s asserted right to a hearing will arise again if Rohrer
appeals future rulings while also attempting to exercise his rights to periodic
reviews of his mental status and of the conditions of his confinement under R.C.
2945.401(C).
       {¶ 11} Rohrer’s first contention is belied by the docket, which shows the
following. Shortly after we declined jurisdiction of Rohrer’s appeal challenging




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the trial court’s denial of the 2014 motion, Judge Holzapfel scheduled a hearing on
the 2015 motion. On September 9, 2016, the trial court ordered that Rohrer be
evaluated in order to determine whether his commitment should continue. On
September 22, the court scheduled a “commitment review” hearing for November
4. This case is therefore moot, because the court is acting on the 2015 motion,
which is exactly the result that Rohrer sought in his petition.
       {¶ 12} Rohrer’s second contention is based on his rights under R.C.
2945.401(C). Under that statute, Rohrer has the right to a biannual review of his
continued commitment, and every six months he may also request an evaluation of
the conditions of his confinement:


       The * * * institution, facility, or program to which a defendant * *
       * has been committed under section * * * 2945.40 of the Revised
       Code shall report in writing to the trial court * * * as to whether the
       defendant * * * remains a mentally ill person subject to court order
       * * *. The * * * 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 * * * the trial court shall hold a hearing on the
       continued commitment of the defendant * * * or on any changes in
       the conditions of the commitment of the defendant * * *. The
       defendant * * * 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.




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                                January Term, 2016




(Emphasis added.) R.C. 2945.401(C). In other words, Rohrer has the right to a
biannual assessment of his status as a mentally ill person. According to the court
of appeals, this is what occurred at hearings in September 2014 and forms part of
the basis of the appeal to the Fourth District in State v. Rohrer, 2015-Ohio-5333,
54 N.E.3d 654, at ¶ 2. That appeal was the reason given by Judge Holzapfel for the
stay of consideration of the 2015 motion.
       {¶ 13} If Judge Holzapfel’s stay of Rohrer’s action based on the 2015
motion pending appeal of the denial of the 2014 motion interfered with either of his
rights under R.C. 2945.401(C), then Rohrer would have an argument that the issue
in this case is capable of repetition yet evading review. Below, the court of appeals
noted that although Rohrer has the statutory right to request every six months a
change in the conditions of his confinement, Judge Holzapfel could impose a stay
after each request as long as an appeal of the denial of any previous such motion,
or an appeal of a biannual assessment of mental status, was pending. Because
Rohrer is entitled to a six-month review of the conditions of his confinement
regardless of whether any other motions are on appeal, the court below reasoned,
this case is capable of repetition yet evading review.
       {¶ 14} While this hypothetical scenario is possible, the 2015 motion does
not implicate either of Rohrer’s rights under R.C. 2945.401(C). Rather, the trial
court conducted a biannual review of Rohrer’s continued commitment in
September 2014. The only request he could make after that was for a six-month
review of the conditions of his confinement. These are distinct issues, as illustrated
by the separate burdens of proof for each set forth in R.C. 2945.401(G)(1) and (2).
       {¶ 15} The 2015 motion does not request a change in the conditions of
Rohrer’s confinement. Rather, it requests Rohrer’s unconditional release based on
his assertion that he no longer meets the definition of a mentally ill person and is
therefore not subject to hospitalization by court order. In support of this assertion,
Rohrer offers arguments virtually identical to those made in his appeal of the denial




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of the 2014 motion, except that he includes the time period from September 2014
until he filed the 2015 motion.
       {¶ 16} The 2015 motion does not fall under either the mandatory biannual
review or the review of the conditions of confinement allowed every six months
under R.C. 2945.401(C). Therefore, by staying consideration of the 2015 motion
pending appeal of the 2014 biannual review, Judge Holzapfel did not interfere with
Rohrer’s statutory rights to a biannual review of his mental status or to a six-month
review of the conditions of his confinement.
       {¶ 17} Because the case is moot and—contrary to the determination of the
court of appeals—does not fall under the mootness exception for issues capable of
repetition yet evading review, we affirm that court’s judgment, though on different
grounds.
                                     Conclusion
       {¶ 18} This case is moot, because the stay placed on consideration of the
2015 motion has been lifted and Judge Holzapfel is considering it. The case does
not meet the “capable of repetition yet evading review” exception to mootness,
because the trial court’s failure to consider the 2015 motion earlier did not violate
Rohrer’s statutory rights to periodic review of his mental status and of the
conditions of his confinement. We affirm the judgment of the court of appeals on
these grounds.
                                                                 Judgment affirmed
                                                                 and motion denied.
       O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
       O’DONNELL, J., concurs in judgment only.
                                  _________________
       Fitrakis & Gaddell-Newton, L.L.C., Robert J. Fitrakis, and David L.
Kastner, for appellant.




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January Term, 2016




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