[Cite as State v. Lantz, 2019-Ohio-3439.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2018-P-0015
        - vs -                                  :

DANNY J. LANTZ,                                 :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2009 CR
0498.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Danny J. Lantz, appeals from the judgment of the Portage

County Court of Common Pleas, concluding it possessed continuing jurisdiction,

pursuant to R.C. 2945.401(J)(1)(b), to keep appellant committed to a mental health

institution after he was found not guilty by reason of insanity in 2009 on two counts of

felonious assault. We reverse and remand the matter.
         {¶2}   In August 2009, the Portage County Grand Jury indicted appellant on two

counts of felonious assault, second-degree felonies under R.C. 2903.11(A)(2). Almost

immediately after appellant’s arraignment, his counsel moved the trial court to order an

evaluation of his sanity at the time the two offenses allegedly took place. Following the

completion of the first psychological evaluation, the trial court conducted a hearing and

found that appellant was competent to stand trial. Nevertheless, the court still ordered

that a second evaluation be performed. Furthermore, appellant’s counsel filed a written

plea of not guilty by reason of insanity.

         {¶3}   Prior to the scheduled date for his trial in late December 2009, appellant

executed a written waiver of his constitutional right to a jury trial. At the beginning of the

ensuing bench trial, the state and appellant submitted into evidence certain stipulations

of fact and a copy of a psychological report. Upon approving the stipulations and fully

reviewing the report, the trial court found appellant not guilty by reason of insanity

(“NGRI”) as to both counts of the indictment. In so concluding, the court ultimately

found:

         {¶4}   by clear and convincing evidence that the defendant is subject to
                hospitalization and, therefore, based on the recommendation of the
                psychologist the defendant shall be committed for the maximum
                sentence allowable or until restored to sanity to Heartland
                Behavioral Healthcare Center, the least restrictive setting
                consistent with the defendant’s treatment needs and community
                safety. The court shall retain jurisdiction of this matter.

         {¶5}   Pursuant to statute, continued commitment hearings and status hearings

were held over the years. The last mandatory two-year review hearing occurred on

September 6, 2016. The parties stipulated to the report from Northcoast Behavioral




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Healthcare (“NBH”) and the trial court found appellant was “mentally ill, subject to

hospitalization and NBH [was] the least restrictive and appropriate commitment facility.”

       {¶6}   On December 6, 2017, appellant’s counsel moved the trial court to enter a

nunc pro tunc judgment to change the original judgment committing appellant to the

mental health institution. The motion sought to change the court’s original order to

commit appellant “for the maximum sentence allowable or until restored to sanity * * *”

to commit appellant “for the maximum prison term for the most serious offense, a term

of eight years.”     Counsel argued the original statement of commitment improperly

enlarged the time-frame over which the court could exercise jurisdiction, for up to 16

years, in violation of R.C. 2945.401(J)(1)(b).

       {¶7}   The matter proceeded to hearing on January 12, 2018.            Appellant’s

counsel argued that, pursuant to R.C. 2945.401(J)(1)(b), the maximum permissible time

over which the trial court could exercise jurisdiction over appellant was eight years, the

maximum penalty for the most serious offense in appellant’s case, a felony-two

felonious assault.    The state argued that, because appellant was charged with two

counts of felonious assault on separate victims, and both were equally serious, the trial

court could exercise jurisdiction over appellant for sixteen years, the maximum penalty

for the charges if they were run consecutively.

       {¶8}   The state also called Dr. Ellen Hott, the attending psychiatrist at the

institution where appellant resides.     Appellant was diagnosed with schizoaffective

disorder, bipolar type, and had a history of substance use disorder that was in

institutional remission. Dr. Hott testified appellant’s treatment plan was to continue his

antipsychotic and mood stabilizing medications that were currently given in long acting




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injectable form. Dr. Hott’s recommendation was that appellant continue the treatment

plan under hospital supervision. Dr. Hott testified that appellant has directly advised her

that he wishes to discontinue antipsychotic medication and plans to do so upon his

discharge. She further testified, however, that if appellant discontinued his medication,

there was a strong possibility, in light of his diagnoses, he would become violent.

       {¶9}   After the hearing, the trial court determined it had continuing jurisdiction

over appellant for up to 16 years after he was found NGRI. The trial court granted the

underlying motion in part and filed an amended entry, which provided:

       {¶10} It is so ordered pursuant to R.C. 2945.401(J)(1)(b) this case will
             remain under the court’s jurisdiction until the defendant is no longer
             a mentally ill person subject to hospitalization by court order, as
             determined by this trial court, or the expiration of the maximum
             prison term or term of imprisonment that the defendant could have
             received if he had been convicted of the most serious offense with
             which he was charged or in relation to which he was found not
             guilty by reason of insanity.

       {¶11} The most serious offense which the defendant was found not guilty
             by reason of insanity was count one, felonious assault a felony of
             the second degree, R.C. 2923.11 and count two, felonious assault,
             a felony of the second degree, R.C. 2923.11. The maximum
             possible sentence imposed if the defendant had been convicted of
             these equally serious offenses would have been sixteen years.

       {¶12} Appellant now appeals and assigns the following as error:

       {¶13} “The trial court erred as a matter of law by declaring appellant can be

institutionalized for up to 16 years.”

       {¶14} Appellant argues the trial court erred in continuing its jurisdiction under

R.C. 2945.401 beyond an eight-year period even though he was found NGRI for two

second-degree felonies which involved two separate victims.           He maintains R.C.

2945.401(J)(1)(b) specifically contemplates continuing jurisdiction for the expiration of




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the maximum term of imprisonment he could have received on the most serious

offense. In this case, one count of felonious assault. Appellant’s assignment of error

requires this court to analyze the trial court’s construction and application of a statute.

We therefore apply a de novo standard of review. See, e.g., State v. Phillips, 11th Dist.

Trumbull No. 2008-T-0036, 2008-Ohio-6562.

       {¶15} R.C. 2945.401(J)(1)(b) controls the trial court’s ability to exercise

jurisdiction over appellant in this case. It provides:

       {¶16} (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:

       {¶17} * * *

       {¶18} (b) The expiration of the maximum prison term or term of
             imprisonment that the defendant or person could have 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;

       {¶19} Appellant asserts that the maximum term of imprisonment for the most

serious offense, eight years, is the maximum period over which the trial court could

exercise jurisdiction over him. Accordingly, he maintains, under subsection (b), the trial

court was without authority to order continued institutionalization of appellant.        In

support, appellant cites the Sixth Appellate District’s opinion in State v. Coleman, 6th

Dist. Lucas No. L-15-1071, 2016-Ohio-1111. In Coleman, the defendant was found

NGRI of robbery and burglary. The trial court subsequently committed the defendant to

an institution for 16 years, the maximum, consecutive prison term to which the




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defendant could have been sentenced had he not been found NGRI. The Sixth District

reversed and remanded the trial court’s judgment, holding: “[t]he trial court is permitted

to commit appellant for psychiatric treatment only for the maximum amount of time

appellant would have received on the most serious offense. As such, appellant should

have only been sentenced to a maximum commitment of eight years.” Id. at ¶15.

       {¶20} R.C. 2945.401(J)(1) governs commitments of individuals under both R.C.

2945.39 and R.C. 2945.40. The former statute addresses individuals charged with a

crime, but found incompetent to stand trial, the latter addresses individuals found NGRI.

With this in mind, subsection (b) is disjunctive and addresses how long a court may

exercise jurisdiction over one of these two individuals. To wit: “The expiration of the

maximum prison term or term of imprisonment that the defendant or person could have

received if the defendant or person had been convicted of the most serious offense with

which the defendant or person [1] is charged or [2] in relation to which the defendant or

person was found not guilty by reason of insanity.” R.C. 2945.401(J)(1)(b).

       {¶21} The first disjunct addresses a charge or charges that remain pending and

the second addresses a charge or charges that a defendant has been previously found

NGRI. The language of the statute consequently indicates the first disjunct would apply

to individuals charged with, but found incompetent to stand trial; the second disjunct

alternatively applies to individuals who have stood trial, and been found NGRI. In light

of the plain language of the statute, the trial court is entitled to exercise jurisdiction over

appellant until the expiration of the maximum prison term for the most serious offense in

relation to which he was found NGRI. Appellant was found NGRI of two counts of

felonious assault, felonies of the second degree. They are each equally serious, but the




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statutory language contemplates the most serious singular offense, not multiple

offenses. To read the statute otherwise would judicially modify the phrase “the most

serious offense” to “the most serious offenses,” or arbitrarily limit “the most serious

offense” clause to those found incompetent to stand trial. The former transcends this

court’s authority; the latter would eliminate what appears to be a necessary modifier,

i.e., the most serious offense, for each disjunct. We accordingly hold the trial court

erred in concluding appellant would be under its jurisdiction for maximum terms

available for both offenses.

       {¶22} Appellant was institutionalized on December 24, 2009; the maximum

penalty for the most serious offense, felonious assault, was eight years. Accordingly,

he is no longer under the court’s jurisdiction.          Statutorily, the Department of

Rehabilitation and Corrections (“DRC”) or the “director’s designee” was empowered to

initiate civil commitment proceedings, pursuant to R.C. 5122.11, at least 14 days prior to

the expiration of appellant’s sentence and discharge. See R.C. 5120.17(I). It does not

appear the DRC initiated those proceedings within the statutory window. Nevertheless,

and in light of the hearing on jurisdiction (in which the court heard substantive evidence

relating to the import of appellant’s continued commitment), R.C. 5122.11 authorizes

“any person or persons” with reliable information or actual knowledge to file an affidavit

with the probate court and initiate commitment proceedings if appellant remains a

mentally ill person subject to a civil court order, pursuant to R.C. 5122.01(B). Simply

because the trial court lost jurisdiction over appellant under its December 2009 criminal

order does not preclude the foregoing civil remedy, particularly if appellant remains a

substantial and immediate danger to himself or others.




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      {¶23} Appellant’s assignment of error has merit.

      {¶24} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is reversed and remanded.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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