[Cite as State v. Henderson, 2014-Ohio-2991.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :   JUDGES:
                                                :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :
DONALD R. HENDERSON                             :   Case No. 13-CA-61
                                                :
        Defendant-Appellant                     :   OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2012-CR-533




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   July 2, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOCELYN S. KELLY                                    THOMAS R. ELWING
239 West Main Street                                60 West Columbus Street
Suite 101                                           Pickerington, OH 43147
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-61                                                         2

Farmer, P.J.

         {¶1}   On January 7, 2011, the Fairfield County Grand Jury indicted appellant,

Donald Henderson, on two counts of rape in violation of R.C. 2907.02 (Case No. 2011-

CR-7).

         {¶2}   On January 11, 2011, appellant entered a plea of not guilty by reason of

insanity and filed a motion to determine competency.         Psychiatric evaluations were

ordered. Hearings were held on March 4, and April 26, 2011. By entry filed April 29,

2011, the trial court found appellant incompetent to stand trial, and ordered treatment at

Appalachian Behavioral Healthcare for restoration to competency.

         {¶3}   A hearing on appellant's competency was held on February 8, 2012. By

entry filed February 21, 2012, the trial court found appellant competent to stand trial.

         {¶4}   Following an additional evaluation regarding appellant's not guilty by

reason of insanity plea, hearings were held on July 20, and September 10, 2012. By

agreed entry filed September 25, 2012, appellant was again found to be incompetent to

stand trial, and restoration treatment was ordered.

         {¶5}   On November 30, 2012, appellant was re-indicted on the same two rape

counts (Case No. 2012-CR-533). The state dismissed the first indictment on December

18, 2012. On January 23, 2013, appellant entered a plea of not guilty by reason of

insanity.

         {¶6}   On February 12, 2013, appellant filed a motion to dismiss on speedy trial

grounds, and on March 6, 2013, filed a motion to dismiss the indictment for violating the

one year limitation for restoration to competency pursuant to R.C. 2945.38(C).             On

March 22, 2013, the state filed a motion to retain jurisdiction pursuant to R.C. 2945.39.
Fairfield County, Case No. 13-CA-61                                                    3


      {¶7}   By entry filed April 1, 2013, the trial court determined the maximum period

for restoration to competency had expired on January 12, 2013 as argued by appellant.

      {¶8}   A hearing to determine the trial court's continuing jurisdiction was held on

June 12, 2013.

      {¶9}   By entry filed July 3, 2013, the trial court denied appellant's motions to

dismiss.

      {¶10} A hearing on appellant's competency to stand trial was held on August 1,

2013. By entries filed August 15, 2013, the trial court found continuing jurisdiction and

committed appellant to Appalachian Behavioral Healthcare, ordered appellant to

undergo an additional evaluation to determine competency to stand trial, and appellant

was found incompetent to stand trial as of January 12, 2013.

      {¶11} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶12} "THE TRIAL COURT ERRED IN CONTINUING JURISDICTION UNDER

R.C. 2945.39(A)(2), WHICH WAS UNCONSTITUTIONAL AS APPLIED, IN VIOLATION

OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW."

                                           II

      {¶13} "THE TRIAL COURT ERRED IN HOLDING A HEARING TO CONTINUE

JURISDICTION UNDER R.C. 2945.39(A)(2) WHEN THE STATUTORY CONDITIONS

PRECEDENT FOR SUCH HEARING WERE NOT MET."
Fairfield County, Case No. 13-CA-61                                                     4


                                              III

       {¶14} "THE     TRIAL    COURT      ERRED         IN   FINDING   THAT   CONTINUED

JURISDICTION UNDER R.C. 2945.39(A)(2) WAS SUPPORTED BY CLEAR AND

CONVINCING EVIDENCE."

                                              IV

       {¶15} "THE     TRIAL    COURT      ERRED         IN   FAILING   TO   DISMISS   THE

INDICTMENT FOR VIOLATION OF THE RIGHT TO SPEEDY TRIAL."

                                           I, II, III

       {¶16} Appellant claims the trial court erred in continuing jurisdiction pursuant to

R.C. 2945.39(A)(2) because the statute as applied was unconstitutional and violated his

rights to due process, the statutory conditions precedent were not met, and the decision

was not supported by clear and convincing evidence. We disagree.

       {¶17} The specific entries in question are the August 15, 2013 orders for

continuing jurisdiction and commitment of appellant to Appalachian Behavioral

Healthcare pursuant to R.C. 2945.38(B) and (C), 2945.39(A), (B) and (D), and 2945.401

which state the following in pertinent part, respectively:



              [R.C. 2945.38] (B)(1)(a) If, after taking into consideration all

       relevant reports, information, and other evidence, the court finds that the

       defendant is incompetent to stand trial and that there is a substantial

       probability that the defendant will become competent to stand trial within

       one year if the defendant is provided with a course of treatment, the court

       shall order the defendant to undergo treatment. If the defendant has been
Fairfield County, Case No. 13-CA-61                                                    5


      charged with a felony offense and if, after taking into consideration all

      relevant reports, information, and other evidence, the court finds that the

      defendant is incompetent to stand trial, but the court is unable at that time

      to determine whether there is a substantial probability that the defendant

      will become competent to stand trial within one year if the defendant is

      provided with a course of treatment, the court shall order continuing

      evaluation and treatment of the defendant for a period not to exceed four

      months to determine whether there is a substantial probability that the

      defendant will become competent to stand trial within one year if the

      defendant is provided with a course of treatment.

             (2) If the court finds that the defendant is incompetent to stand trial

      and that, even if the defendant is provided with a course of treatment,

      there is not a substantial probability that the defendant will become

      competent to stand trial within one year, the court shall order the

      discharge of the defendant, unless upon motion of the prosecutor or on its

      own motion, the court either seeks to retain jurisdiction over the defendant

      pursuant to section 2945.39 of the Revised Code***.

             (C) No defendant shall be required to undergo treatment, including

      any continuing evaluation and treatment, under division (B)(1) of this

      section for longer than whichever of the following periods is applicable:

             (1) One year, if the most serious offense with which the defendant

      is charged is one of the following offenses:
Fairfield County, Case No. 13-CA-61                                                   6


            (a) Aggravated murder, murder, or an offense of violence for which

      a sentence of death or life imprisonment may be imposed;

            (b) An offense of violence that is a felony of the first or second

      degree[.]

            [R.C. 2945.39] (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 hospitalization

      by court order or a mentally retarded person subject to institutionalization

      by court order.

            (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
Fairfield County, Case No. 13-CA-61                                                     7


      constituting the offense charged, and any history of the defendant that is

      relevant to the defendant's ability to conform to the law.

             (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.***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.

             [R.C. 2945.401] (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. If the jurisdiction is terminated
Fairfield County, Case No. 13-CA-61                                                        8


       under this division because of the final termination of the commitment

       resulting from the expiration of the maximum prison term or term of

       imprisonment described in division (J)(1)(b) of this section, the court or

       prosecutor may file an affidavit for the civil commitment of the defendant

       or person pursuant to Chapter 5122. or 5123. of the Revised Code.



       {¶18} The trial court's July 3, and August 15, 2013 entries outline the tortured

procedural history of this case. There is no challenge to the trial court's conclusion that

the dismissal of the first indictment and the re-indictment did not affect the statutory time

limitations and conditions precedent of R.C. 2945.38(C) and 2945.39(A)(2). By entry

filed April 1, 2013, the trial court determined the one year passage of time under R.C.

2945.38(C) expired on January 12, 2013 as argued by appellant; however, on January

12, 2013, the first indictment was already dismissed and the re-indictment had been

filed on November 30, 2012. Also, on February 21, 2012 in the first case, appellant was

found competent to stand trial. Thereafter, appellant was found incompetent to stand

trial by agreed entry filed September 25, 2012, and was ordered to treatment for

restoration of competency. For 217 days, despite continued re-evaluations, appellant

was competent to stand trial and was not in treatment with Appalachian Behavioral

Healthcare.

       {¶19} This very unusual fact pattern leaves this court to analyze two questions:

1) Did the February 21, 2012 determination of competency turn off the one year time

clock for 217 days? and 2) If it did, was the evidence presented during the June 12,

2013 hearing sufficient to establish by clear and convincing evidence that appellant was
Fairfield County, Case No. 13-CA-61                                                          9


subject to the continuing jurisdiction of the trial court pursuant to R.C. 2945.39 and

2945.401?

       {¶20} The docket of the first indictment demonstrates that from February 21,

2012 to September 25, 2012, the general course of the case was that appellant was

competent, and numerous trial dates and suppression hearings were scheduled.

Therefore, we conclude with the September 25, 2012 agreed entry finding appellant

incompetent to stand trial, an entire new restoration period commenced and the

deadline for final restoration or the invoking of the trial court's continuing jurisdiction was

September 25, 2013. As to the first question posed, we answer it in the affirmative.

       {¶21} Now we turn to the evidence presented during the June 12, 2013 hearing

and review whether there was clear and convincing evidence to support continuing

jurisdiction pursuant to R.C. 2945.39(A)(2)(a) and (b): whether appellant committed the

offense with which he was charged and whether appellant is a mentally retarded person

subject to institutionalization by court order.

       {¶22} At the time of the incident on December 25, 2010, appellant and the 70

year old victim were residing in a group home and were receiving services from the

Fairfield County Board of Developmental Disabilities. T. at 8-9, 25-26, 41-42, 47-48.

The group home was run by Gregg and Tonya Seesholtz. T. at 6-8. Their son, Patrick

Seesholtz, testified he observed appellant attempt to insert his penis into the victim's

mouth. T. at 7, 9-10, 12.

       {¶23} Lois Everitt, an individual support coordinator supervisor with the Fairfield

County Board of Developmental Disabilities, testified about a group meeting wherein

appellant "did share that he did have his penis in the victim's face and that he had put
Fairfield County, Case No. 13-CA-61                                                    10


his head - - or his hands on his head and held him there." T. at 25. Because of the

incident that occurred, appellant had a need for special placement which was not

available in Fairfield County. T. at 18-19. Appellant expressed to Ms. Everitt that he

would leave the state and threatened to harm himself and others if he was placed back

in a group home. T. at 20-21. Appellant was not capable of living by himself if released

because of the "potential harm to the community, and the lack of funding to pay for the

services that he may need." T. at 21, 26-27. She testified the victim is "very severely

disabled." T. at 26.

       {¶24} Richard Patterson, appellant's individual support coordinator with the

Fairfield County Board of Developmental Disabilities, testified to appellant's escalating

issues concerning inappropriate sexual behavior with minors.         T. at 44.   Appellant

expressed to Mr. Patterson that he felt "because of his disability, he could kind of do

what he wanted to do and not get in trouble." T. at 46. Mr. Patterson described the

victim as "profoundly mentally retarded" and unable to consent to sexual acts. T. at 47-

48.   He opined appellant was not capable of living on his own and was unable to

conform his behavior to the law. T. at 52. There was testimony of appellant's on-going

sexual behavior toward other persons with mental disabilities. T. at 52-53, 73-76.

       {¶25} This testimony establishes, by clear and convincing evidence, that the

state satisfied its burden under the first prong of R.C. 2945.39(A)(2).

       {¶26} As for the second prong, Leah Jaquith, Ph.D., a clinical psychologist with

Appalachian Behavioral Healthcare, testified to her February 2013 evaluation of

appellant for competency to stand trial and five reports of others she had reviewed, as

well as medical records and court documents. T. at 92, 94-95. She testified appellant
Fairfield County, Case No. 13-CA-61                                                  11


had a full scale IQ of 61 which is "in the middle of the mild category" for mental

retardation. T. at 100. One of the reports Dr. Jaquith reviewed was an April 16, 2012

report by Bradley Hedges, Ph.D., PCCS, of Mid-Ohio Psychological Services who

opined appellant was "not restorable to competency." T. at 101. Dr. Jaquith disagreed

with the report, opining that appellant "was restorable, and at that moment in time, in

February, that he was restored to competence." T. at 101, 107. She stated appellant's

apparent knowledge of the judicial process was more than a rote understanding. T. at

104-107. She agreed that a "person can be presently not competent to stand trial, but

restorable."   T. at 112.   Dr. Jaquith was unable to give an opinion on appellant's

competency to stand trial at the June 12, 2013 hearing, but explained he could be

restored because "he's been able to be restored other times, I would say that that

probably remains the case, that that could happen again." T. at 115, 117-118, 121.

       {¶27} All of the cited testimony, coupled with State's Exhibits B, C, and D,

establish, by clear and convincing evidence, that appellant is mentally retarded subject

to institutionalization pursuant to R.C. 2945.38(A)(2)(b).

       {¶28} The September 25, 2012 agreed entry found appellant to be incompetent,

but restorable.   The only finding on the record and even in the testimony is that

appellant is incompetent; therefore, we find the requirements of R.C.2945.39 and

2945.401 to have been met. As to the second question posed, we answer it in the

affirmative.

       {¶29} Given our ruling that the one year limitation was not violated, we do not

find a constitutional violation of appellant's due process rights.

       {¶30} Assignments of Error I, II and III are denied.
Fairfield County, Case No. 13-CA-61                                                     12


                                            IV

         {¶31} Appellant claims the trial court erred in denying his motion to dismiss on

speedy trial grounds pursuant to R.C. 2945.71. We disagree.

         {¶32} Pursuant to R.C. 2945.71(C)(2), a person against whom a charge of

felony is pending "[s]hall be brought to trial within two hundred seventy days after the

person's arrest." R.C. 2945.72(B) provides an extension for "[a]ny period during which

the accused is mentally incompetent to stand trial or during which his mental

competence to stand trial is being determined, or any period during which the accused

is physically incapable of standing trial." As stated in R.C. 2945.71(E), "each day during

which the accused is held in jail in lieu of bail on the pending charge shall be counted as

three days."

         {¶33} Appellant was arrested on December 28, 2010. He argues from this date

until February 12, 2013 when he filed his motion to dismiss on speedy trial grounds, 777

had passed. He argues pursuant to the Supreme Court of Ohio's decision in State v.

Adams, 43 Ohio St.3d 67 (1989), "any waiver of speedy trial resulting from the

competency motion in 2011-CR-7 does not apply to a determination of Henderson's

speedy trial rights under the present indictment in 2012-CR-533." Appellant's Brief at

19-20.    Adams is distinguishable and inapplicable in this case.      Adams involved a

voluntary waiver of time for trial. In the case sub judice, time was tolled when appellant

filed a not guilty by reason of insanity plea and a motion to determine competency. The

same plea was entered and the same competency issues remained when the case was

re-indicted on November 30, 2012.
Fairfield County, Case No. 13-CA-61                                                     13


       {¶34} In its brief at 16-19, the state set out a detailed timeline of events in this

case, concluding that thirteen calendar days or thirty-nine speedy trial days have

passed. We agree with the state's calculations and the trial court's reliance thereon in

its entry filed July 3, 2013.

       {¶35} Assignment of Error IV is denied.

       {¶36} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.




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