[Cite as State v. Baird, 2020-Ohio-2717.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                            No. 108515
                 v.                               :

DENNIS BAIRD,                                     :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: DISMISSED AND REMANDED
                 RELEASED AND JOURNALIZED: April 30, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-627999-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and James Rice, Assistant Prosecuting
                 Attorney, for appellee.

                 Buckeye Law Office, and P. Andrew Baker, for appellant.

SEAN C. GALLAGHER, J.:

                   Dennis Baird appeals the order authorizing the involuntary

administration of medications and treatment, which was meant to restore his

competency to stand trial for menacing by stalking, a felony of the fourth degree
under R.C. 2903.211(A)(1). For the following reasons, we dismiss this appeal as

moot and remand the case for further proceedings.

               Baird was diagnosed with an unspecified delusional disorder. The

fourth-degree felony menacing by stalking charge was based on allegations that

Baird developed the delusion that a doctor had implanted a device in his head during

an outpatient sinus procedure. Between September 2016 and April 2018, Baird left

hours of threatening voicemails on the doctor’s phone, and sent a letter to the doctor

declaring his belief that they had parented children together and also declaring his

wishes to live with the doctor.

               In August 2018, Baird was deemed incompetent to stand trial and he

was committed to Northcoast Behavioral Health (“NBH”) in the attempt to restore

his competency. In December of that year, it was determined that Baird was

refusing to speak with his doctors and refusing to take any medications. The trial

court authorized the forced administration of medication to facilitate the restoration

of Baird’s competency to stand trial for the pending charge. The trial court stayed

execution of that order pending further evaluation. In April 2019, after considering

additional medical and competency evaluations, the trial court lifted the stay and

ordered the forced medication to proceed. It is from this order that Baird timely

appealed.

               Baird, however, did not seek to stay execution of the trial court’s

interlocutory order, which is a final appealable one, until July 30, 2019, at which

time this court granted a stay of execution. State v. Muncie, 91 Ohio St.3d 440, 441,
2001-Ohio-93, 746 N.E.2d 1092, paragraph two of the syllabus; see also State v.

Barker, 2d Dist. Montgomery No. 21438, 2007-Ohio-4612 (defendant sought and

was granted a stay of execution on the petition for forced medication under R.C.

2945.38 during the interlocutory appeal); State v. Ramey, 10th Dist. Franklin Nos.

19AP-642 and 19AP-643, 2019-Ohio-5087, ¶ 5, fn. 1 (appellant successfully sought

a stay of the order forcing medication preserving the appeal). Thus, Baird was

subject to the forced-medication order between April 8, 2019, and our stay issued

on August 1, 2019. In addition, the trial court committed Baird to NBH for the

purpose of ongoing treatment on August 3, 2018, remanding Baird to county jail

until a bed became available.

              It is unclear what effect, if any, that August 1st stay had on the forced-

medication issue.   Under R.C. 2945.38(B)(1)(a), the length of evaluation and

treatment of the defendant to determine whether there is a substantial probability

that the defendant will be restored to competency “shall not exceed” four months.

Under R.C. 2945.38(B)(1)(a)-(b), if the trial court determines that there is a

substantial probability that the defendant will be restored to competency within one

year, including situations in which the court orders forced medication under

subdivision (B)(1)(c), the court may order the defendant to undergo treatment and

further evaluations. Under R.C. 2945.38(C)(2), however, the total length of any

treatment under subdivisions (B)(1)(a)-(c) cannot exceed six months for the fourth-
degree felony at issue in this case.1 Baird had been ordered to undergo treatment to

restore competency since August 3, 2018, and he had been under the forced-

medication order since April 8, 2019.

                Regardless, while the appeal was pending, the trial court determined

that Baird remained incompetent to stand trial2 and was not likely to be restored to

competency under R.C. 2945.38(H), which requires the trial court to discharge the

offender if the defendant cannot be restored to competency within the statutory time

frame unless the court retains jurisdiction under R.C. 2945.39, if applicable, or an

affidavit is filed in the probate court for the civil commitment of the defendant under

R.C. Chapter 5122 or 5123. See also R.C. 2945.38(H)(4) (“if the maximum time for

treatment under division (C) has expired,” the court “shall dismiss the indictment,

information or complaint” and discharge the defendant unless the court or

prosecutor files an affidavit for civil commitment in probate court). Because the



       1 On December 19, 2018, the trial court purportedly “stayed” the statutory
restoration period from the date that the treating facility requested the forced medication
under R.C. 2945.38(B)(1)(c). It is unclear under what authority the court purported to
stay the statutory restrictions under R.C. 2945.38(C)(2), which expressly apply to
subdivision (B)(1)(c). Regardless, the statutory restoration period is not an issue before
us; we simply note the incongruity for the sake of clarity.

       2 Although the entry deeming Baird incompetent to stand trial within the one-year
deadline was not made a part of the appellate record — it was filed after the date the record
was filed — we take judicial notice of the journal entry as it is reflected on the trial court’s
electronic docket. “An appellate court may take judicial notice of prior proceedings in the
same case and the docket of the lower court’s case.” Smoyer v. Smoyer, 10th Dist.
Franklin No. 18AP-365, 2019-Ohio-3461, ¶ 21, fn. 1, citing Stancourt v. Worthington City
School Dist. Bd. of Edn., 164 Ohio App.3d 184, 2005-Ohio-5702, 841 N.E.2d 812, ¶ 14, fn.
3 (10th Dist.), and Pollard v. Elber, 2018-Ohio-4538, 123 N.E.3d 359, ¶ 14-15 (6th Dist.).
order appealed was an interlocutory one limited to the propriety of the forced-

medication order, the trial court possessed jurisdiction over the remainder of the

case. Further, neither party separately appealed the trial court’s latest decision, and

it is not apparent whether that decision was itself a final appealable order in full

compliance with the letter of R.C. 2945.38(H)(4). Regardless, the trial court’s latest

decision — declaring that Baird’s competency could not be restored within the

statutory time frame irrespective of the forced-medication order — renders this

appeal moot.

               “Generally, courts will not resolve issues that are moot.” State v.

Marcum, 2015-Ohio-5237, 54 N.E.3d 719, ¶ 6 (10th Dist.), citing In re L.W., 168

Ohio App.3d 613, 2006-Ohio-644, 861 N.E.2d 546, ¶ 11 (10th Dist.). An appeal will

be deemed moot if the appellant seeks to obtain a “judgment upon some matter

which, when rendered, for any reason cannot have any practical legal effect upon a

then-existing controversy.” Id., citing In re L.W. When an appeal becomes moot

based on an event occurring after the final entry of conviction, the appeal must be

dismissed. State v. Kimbro, 8th Dist. Cuyahoga No. 107529, 2019-Ohio-1247, ¶ 2.

This is because, in general, appellate courts avoid issuing advisory opinions. Dohme

v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 27,

citing State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775

N.E.2d 508, ¶ 18, State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio

St.3d 238, 242, 2000-Ohio-67, 736 N.E.2d 893, and Egan v. Natl. Distillers &

Chem. Corp., 25 Ohio St.3d 176, 495 N.E.2d 904 (1986).
                The sole issue advanced in this appeal is whether the trial court erred

in ordering the appropriate authority to forcibly medicate Baird, in order to facilitate

his competency to stand trial within the statutory period. Because Baird is not now

subjected to being forcibly medicated to restore his competency to stand trial, we no

longer have a live case and controversy. Even if we were to agree with Baird’s

arguments and reverse the decision of the trial court, there would be no practical

effect on Baird’s situation — it has been concluded that Baird’s competency cannot

be timely restored notwithstanding the forced-medication order. Any decision we

render on this issue would be advisory in nature.3

                We are aware of the decisions concluding that an exception to the

mootness doctrine exists when a trial court orders the administration of medications

in the context of a civil commitment. See, e.g., Steele v. Hamilton Cty. Community

Mental Health Bd., 90 Ohio St.3d 176, 189, 2000-Ohio-47, 736 N.E.2d 10, fn. 8 (in

part concluding that the probate court’s order to force medication was not moot

because it is “possible” that the appellant could withdraw his permission to take the

medications in the future and the probate court’s original order would remain

intact). Those decisions do not apply in this particular case. The issue raised in this

case stems from the trial court’s decision authorizing forced medication in the

attempt to restore a defendant’s competency to stand trial. An order authorizing the


       3 We further note that  Baird’s entire discussion on the merits of his appeal is based
on case law derived from forced-medication orders in the context of civil commitment.
The standard for those orders in the criminal context to restore competency to stand trial
is distinct from its civil counterpart. State v. Barker, 2d Dist. Montgomery No. 20417,
2005-Ohio-298, ¶ 20. Our review would be extremely limited.
forced medication of a defendant to restore competency to stand trial is reviewed

under a different standard than forced medication for civil, involuntary

confinement. Barker, 2d Dist. Montgomery No. 20417, 2005-Ohio-298, at ¶ 20. In

the civil-commitment context, forcible medication can be ordered only if the

individual poses an imminent threat of harm to himself or others or lacks capacity

to give or withhold informed consent about treatment. Id. In the criminal context,

defendants can be forcibly medicated to restore competency to stand trial under the

standards and procedures set forth by R.C. 2945.38, which stand separate and apart

from the civil requirements. Id.

               Because the trial court in this case has concluded that restoration is

not possible in the statutory time frame, the forced-medication order has been

terminated. Any future issues with Baird’s commitment will be addressed under the

civil-commitment standards for authorizing the forced medication of a committed

individual.   R.C. 2945.38(H)(4) (proceedings in the probate court regarding

commitments, even if authorized under R.C. 2945.39(A)(1), are civil proceedings).

Accordingly, we cannot conclude that the forced-medication issue is capable of

repetition in the criminal context in this case. See, e.g., In re Smith, 4th Dist. Athens

Nos. 92CA1561 and 92CA1568, 1993 Ohio App. LEXIS 5057, 6 (Sept. 29, 1993)

(appellant’s release from civil commitment mooted any issues with respect to the

forced-medication issue).

               However, we note that under R.C. 2945.38(H), upon finding that the

defendant’s competency is not restorable after the maximum time allowed under
division (C) for the particular offense has expired, (1) the defendant shall be

discharged unless the court or the prosecutor files an affidavit in probate court for

civil commitment, or (2) if R.C. 2945.39 applies, upon motion of the prosecutor or

the court, the court may retain jurisdiction over the defendant if at a hearing the

court finds that the defendant committed the offense and is a mentally ill person

subject to court order. State v. Ellison, 10th Dist. Franklin No. 17AP-328, 2018-

Ohio-1835, ¶ 12. Absent the division (A)(2) findings under R.C. 2945.39, the court

“shall” dismiss the indictment against the defendant unless the state or the court

seeks the offender’s civil commitment. R.C. 2945.38(H)(4); R.C. 2945.39(C); State

v. Dotson, 8th Dist. Cuyahoga No. 92812, 2010-Ohio-3081, ¶ 8. In this case, the

trial court could not make the finding that the defendant committed the offense after

a hearing under R.C. 2945.39(A)(2), since that section was inapplicable to the

fourth-degree felony at issue in this case, and there is no indication in the record

that the prosecutor or trial court filed an affidavit in probate court for civil

commitment. Accordingly, it is unclear whether the case has been fully resolved.

              In light of the fact that the trial court has concluded that Baird’s

competency cannot be restored within the statutory time frame, the sole issue

advanced in this appeal is moot. There is no longer a live case or controversy to be

resolved, and we cannot offer Baird any relief from the order authorizing Baird to be

forcibly medicated for the purposes of restoring his competency to stand trial that is

no longer in effect. The appeal is dismissed. Notwithstanding, in light of the fact

that there has not been a final resolution of the matter entered upon the docket and
the order appealed was an interlocutory one, this case is remanded to the trial court

for further proceedings.

      It is ordered that appellee recover from appellant costs herein taxed.

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

of the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, A.J., and
MARY J. BOYLE, J., CONCUR
