[Cite as State v. D.M., 2019-Ohio-4686.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2019 CA 00003
DANIEL M.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2018 CR 00205


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        November 13, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

ERIC M. DEPUE                                   JAMES A. ANZELMO
ASSISTANT PROSECUTOR                            446 Howland Drive
20 North Second Street, 4th Floor               Gahanna, Ohio 43230
Newark, Ohio 43055
Licking County, Case No. 2019 CA 00003                                                     2


Wise, J.

      {¶1}    Appellant Daniel M. appeals the decision of the Court of Common Pleas,

Licking County, which ordered, subsequent to a plea of not guilty by reason of insanity

for felonious assault, involuntarily hospitalization and medication. Appellee is the State of

Ohio. The relevant facts leading to this appeal are as follows.

      {¶2}    On March 27, 2018, officers from the Hebron Police Department responded

to an address on Raspberry Circle where appellant had become “enraged” and attacked

a male victim with a sword, causing a severe laceration on the man’s arm. Plea Tr. at 8.

      {¶3}    On April 5, 2018, appellant was indicted on one count of felonious assault

(R.C. 2903.11), a felony of the second degree.

      {¶4}    On August 21, 2018, appellant, with the assistance of counsel, pled not

guilty to the aforesaid charge by reason of insanity. On the same day, the trial court

accepted appellant’s plea and found him not guilty by reason of insanity. The trial court

also ordered appellant to be evaluated as to whether he should be subject to

hospitalization, pursuant to R.C. 2945.40(B). See Judgment Entry, August 21, 2018. The

court ordered a report on appellant’s evaluation to be filed within ten days of the date of

the plea; however, the court subsequently granted an extension to file the report on or

before September 20, 2018.

      {¶5}    Appellant was evaluated by Dr. Daniel Hrinko on September 17, 2018. See

State's Exhibit 1. At that time, appellant was in placement at the Twin Valley Behavioral

Healthcare Center in Columbus, Ohio. On September 24, 2018, Dr. Hrinko issued his

written evaluation. He therein recommended that appellant be placed in a locked

psychiatric facility for treatment.
Licking County, Case No. 2019 CA 00003                                                  3


      {¶6}   On December 5, 2018, the State filed a motion asking the trial court to order

appellant to undergo forced medication because he was refusing treatment. On

December 11, 2018, the trial court held a hearing on the State’s aforesaid request. At the

hearing, appellant moved for dismissal and discharge under the time requirements of R.C.

2945.40(B), in accordance with his similar written motion filed on November 7, 2018.

      {¶7}   The trial court issued a judgment entry on December 13, 2018, ordering

inter alia that appellant undergo treatment for mental illness at Twin Valley Behavioral

Healthcare and to undergo forced medication administration. Appellant’s request for

discharge was denied.

      {¶8}   On January 8, 2019, appellant filed a notice of appeal. He herein raises the

following three Assignments of Error:

      {¶9}   “I. THE TRIAL COURT ERRED BY DENYING [APPELLANT’S] MOTION

TO DISMISS, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS UNDER THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 1, ARTICLE I, OF THE OHIO CONSTITUTION.

      {¶10} “II. THE TRIAL COURT ERRED BY PLACING [APPELLANT] UNDER

INVOLUNTARY HOSPITALIZATION, IN VIOLATION OF HIS DUE PROCESS RIGHTS

UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION 1, ARTICLE I, OF THE OHIO CONSTITUTION.

      {¶11} “III. THE TRIAL COURT ERRED BY ORDERING [APPELLANT] TO

UNDERGO FORCED MEDICATION, IN VIOLATION OF HIS DUE PROCESS RIGHTS

UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION 1, ARTICLE I, OF THE OHIO CONSTITUTION.”
Licking County, Case No. 2019 CA 00003                                                      4


                                      Appellate Jurisdiction

      {¶12} As an initial matter, we have sua sponte observed in our review of the

procedural history of this case that on March 14, 2019, approximately two months after

appellant filed his notice of appeal, the trial court held a subsequent “hearing on [the] Twin

Valley Report.” In the resulting March 14, 2019 judgment entry issued by the trial court,

appellant was again at that time inter alia “ordered to undergo treatment for this mental

illness at Twin Valley Behavioral Healthcare, Civil Unit, (Kosar), for post-NGRI treatment”

although the court added Level III movement privileges. No notice of appeal is evident

regarding this March 14, 2019 order, which appears to be a “continued commitment”

ruling under R.C. 2945.401(C). This raises the question of whether the December 13,

2018 judgment entry under appeal should be treated as an interlocutory order that has

been superseded by a subsequent judgment entry and thus been rendered moot. Cf. In

re Harris, 8th Dist. Cuyahoga No. 76631, 2000 WL 1643569.

      {¶13} In Wachtel v. Athens Cty. Common Pleas Court, 4th Dist. Athens No.

01CA25, 2002-Ohio-1478, the Fourth District Court of Appeals determined that

commitment rulings under R.C. 2945.40 are orders that affect substantial rights made in

special proceedings for purposes of a final order determination under R.C. 2505.02(B)(2).

Id. at ¶ 7. The Court also found that “*** since it may be as long as two years between

continued-commitment hearings, *** each such hearing is a special proceeding.” Id.

      {¶14} In light of Wachtel’s reasoning, we answer our above question in the

negative and find we may proceed to the merits of the present appeal.
Licking County, Case No. 2019 CA 00003                                                         5


                                                   I.

      {¶15} In his First Assignment of Error, appellant contends the trial court erred in

denying his motion to dismiss the State’s request for hospitalization. We disagree.

      {¶16} R.C. 2945.40(B) states as follows: “The court shall hold the hearing under

division (A) of this section to determine whether the person found not guilty by reason of

insanity is a mentally ill person subject to court order or a person with an intellectual

disability subject to institutionalization by court order within ten court days after the finding

of not guilty by reason of insanity. Failure to conduct the hearing within the ten-day period

shall cause the immediate discharge of the respondent, unless the judge grants a

continuance for not longer than ten court days for good cause shown or for any period of

time upon motion of the respondent.”

      {¶17} In the case sub judice, the trial court received Dr. Hrinko’s evaluation of

appellant on or about September 24, 2018. The hearing on said evaluation took place on

December 11, 2018, clearly outside of the twenty “court day” maximum time frame of R.C.

2945.40(B) absent any motions for extension by appellant.

      {¶18} However, the Second District Court of Appeals has addressed the issue

before us. See State v. Pollock, 2nd Dist. Greene No. 2001-CA-32, 2002-Ohio-102. The

Court in Pollock stated: “*** Ohio Supreme Court precedent as well as public policy

considerations lead us to conclude that a trial court's failure to conduct a treatment

hearing within the time limits of R.C. 2945.40(B) does not deprive the trial court of

authority to order commitment of a mentally ill defendant.” Id. The Court observed that

R.C. 2945.40(B) “is a time restriction on the performance of an official duty” that contained

no language terminating a trial court's jurisdiction or otherwise barring further proceedings
Licking County, Case No. 2019 CA 00003                                                    6


where said time restriction had not been met. The Court thus concluded: “*** [E]ven

though Pollack [sic] was entitled to be discharged from custody pending the dispositional

hearing, in view of the fact that the trial court waited too long to hold the hearing, his

discharge would not have affected the court's continued jurisdiction to order treatment.”

Id.

      {¶19} We concur with the reasoning of Pollock and herein hold the trial court did

not err in the present case in denying appellant’s request to dismiss.

      {¶20} Appellant's First Assignment of Error is therefore overruled.

                                                II.

      {¶21} In his Second Assignment of Error, appellant contends the trial court erred

and violated his due process rights by placing him under involuntary hospitalization. We

disagree.

      {¶22} The nature and conditions of an insanity acquittee's confinement are a

determination which lies within the sound discretion of the trial court. State v. Crossan,

122 Ohio App.3d 511, 514, 702 N.E.2d 157 (4th Dist.1997) (additional citations omitted).

The trial court's discretion is guided under R.C. 2945.40(F) by an instruction to “give

preference to public safety” when considering the acquittee’s request. State v. Stutler, 5th

Dist. Stark No. 2017CA00094, 2018-Ohio-1619, 101 N.E.3d 738, ¶ 21. Furthermore, as

an appellate court, we are not the trier of fact. Our role is to determine whether there is

relevant, competent, and credible evidence upon which the factfinder could base his or

her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010–

Ohio–3489, ¶ 16, citing Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL

2911. The weight to be given to the evidence and the credibility of the witnesses are
Licking County, Case No. 2019 CA 00003                                                        7


issues for the trier of fact. See, e.g., State v. Jamison (1990), 49 Ohio St.3d 182, 552

N.E.2d 180.

      {¶23} Dr. Hrinko’s written report of September 24, 2018 records that appellant,

upon admission to Twin Valley on September 11, 2018, had exhibited disoriented

thoughts, visual hallucinations, “racing thoughts” and expressions of unspecific suicidal

ideations. See State’s Exhibit 1. In his testimony at the December 11, 2018 hearing, Dr.

Hrinko did make a number of positive comments about appellant, as pointed out in

appellant’s present brief. For example, regarding his September 17, 2018 evaluation, Dr.

Hrinko testified that appellant "was functioning relatively well" and that his "thinking was

relatively clear." Tr., Dec. 11, 2018, at 20. In regard to appellant’s plans for the future, Dr.

Hrinko recalled that appellant “had a reasonable insight and a reasonably good

commitment to making things work this time ***.” Tr. at 22. However, Dr. Hrinko observed

that appellant had shown a tendency in the past, when leaving structured environments,

to stop using his medications and begin using street drugs, thus “return[ing] to unstable

flat-out dangerous behaviors.” Id. Thus, Dr. Hrinko agreed that appellant’s plan for being

maintained in the community (i.e., living with his mother and checking in with mental

health care providers) was not sufficient. Tr. at 21-22. He also opined that “success

requires more than being willing and committed.” Tr. at 22. Dr. Hrinko concluded:

              I believe that the least restrictive environment that would meet his

       needs and protect the safety of the community would be for him to be placed

       in a locked civil psychiatric facility to have the benefits of the supports in

       developing plans and opportunity to demonstrate those plans on a gradual
Licking County, Case No. 2019 CA 00003                                                     8


       return to the community that is consistent with the programs that I’ve seen

       operate at Twin Valley in the past.

      {¶24} Tr. at 23.

      {¶25} The court also heard testimony and received a written report from Dr.

Christopher Corner, a psychiatrist at Twin Valley. Although a previous doctor (Dr. Dagum)

had "stabilized” appellant (see Tr. at 40, 44), Dr. Corner testified inter alia that in early

December 2018, appellant had informed hospital staff that he was refusing all

antipsychotic medication. Tr. at 41. Dr. Corner met with appellant, who was then

presenting as “extremely disorganized” and “quite paranoid.” Id. Dr. Corner opined that

he thought appellant “would be a dangerous man in the community undedicated.” Tr. at

42. He was in agreement with Dr. Hrinko’s opinion that appellant needed to be

institutionalized. Id.

      {¶26} Upon review, we find no grounds in this instance to reverse the decision of

the finder of fact who observed the proceedings firsthand, and we affirm the trial court's

implicit conclusion that the facts and circumstances clearly and convincingly demonstrate

appellant is a mentally ill person subject to continued hospitalization.

      {¶27} Appellant’s Second Assignment of Error is overruled.

                                                III.

      {¶28} In his Third Assignment of Error, appellant contends the trial court erred and

violated his constitutional rights in ordering him to undergo the forced administration of

psychiatric medication without making written findings. We disagree.

      {¶29} The Ohio Supreme Court has established that “[a] court may issue an order

permitting hospital employees to administer antipsychotic drugs against the wishes of an
Licking County, Case No. 2019 CA 00003                                                      9


involuntarily committed mentally ill person if it finds, by clear and convincing evidence,

that: (1) the patient does not have the capacity to give or withhold informed consent

regarding his/her treatment; (2) it is in the patient's best interest to take the medication,

i.e., the benefits of the medication outweigh the side effects; and (3) no less intrusive

treatment will be as effective in treating the mental illness.” Steele v. Hamilton County

Community Mental Health Board (2000), 90 Ohio St.3d 176, 736 N.E.2d 10, paragraph

six of the syllabus.

      {¶30} Building upon Steele, appellant herein first directs us to State v. Rowe, 3rd

Dist. Union No. 14-05-31, 2006-Ohio-1883, in which the defendant had pled not guilty by

reason of insanity to attempted murder and other felonies. Mr. Rowe argued on appeal

that the trial court had erred by ordering forced medications without making adequate

findings in support. The Third District Court concluded: “[W]e believe that it would be the

better practice to follow the procedure set forth by the Ohio Supreme Court in Steele in

determining matters of forced medication in NGRI cases.” Rowe at ¶ 44. Mr. Rowe’s

assigned error in this regard was sustained. Id.

      {¶31} Appellant also directs us to State v. Lantz, 11th Dist. No. 2010-P-0093,

2011-Ohio-5436, 969 N.E.2d 285. The Eleventh District Court therein applied the Steele

requirement of findings, even though it recognized that Steele involved a mentally ill

person whose detention in a mental-health facility was pursuant to an order in a civil

commitment proceeding, as opposed to a commitment order made in a criminal action

after a finding of not guilty by reason of insanity. Lantz at ¶ 16. However, the Court added

that it found “the need for proper findings is even more critical” in the circumstances before
Licking County, Case No. 2019 CA 00003                                                      10


it, “given that it is evident from the appealed judgment that the trial court did not apply the

appropriate standard.” Lantz at ¶ 20.

      {¶32} Upon review, notwithstanding that in the present case there is no patent

indication of the trial court applying an inappropriate standard to the question of forced

medication, we reject the rationale of Rowe and Lantz. While we would at least initially

agree with Rowe that specific written findings in these types of cases are the “better

practice,” we do not conclude that the failure to make them warrants reversal. Appellant

does not provide us with any statutory language indicating the General Assembly

intended to mandate formal findings in R.C. 2945.40 proceedings in the present context.

Furthermore, in proceedings before the bench, a trial court judge is presumed to know

the applicable law and apply it accordingly. See Walczak v. Walczak, Stark App.No.

2003CA00298, 2004–Ohio–3370, ¶ 22.

      {¶33} We therefore find no reversible error in the lack of more detailed findings in

the judgment entry under appeal.

      {¶34} Appellant's Third Assignment of Error is overruled.

      {¶35} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Licking County, Ohio, is hereby affirmed.

By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.

JWW/d 1101
