[Cite as Westlake v. Mills, 2015-Ohio-5137.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102486



                                         CITY OF WESTLAKE

                                                              PLAINTIFF-APPELLEE

                                                  vs.

                                          BARBARA A. MILLS

                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                       Criminal Appeal from the
                                      Rocky River Municipal Court
                                        Case No. 11 CRB 0038

        BEFORE: Laster Mays, J., Keough, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: December 10, 2015

                                                  -i-
ATTORNEY FOR APPELLANT

Jeffrey M. McGaffick
571 East 185th Street
Cleveland, Ohio 44119


ATTORNEYS FOR APPELLEE

John D. Wheeler
Director of Law

By: Sean F. Kelleher
Assistant Director of Law
City of Westlake
27700 Hilliard Blvd.
Westlake, Ohio 44145
ANITA LASTER MAYS, J.:

        {¶1} Defendant-appellant Barbara A. Mills (“Mills”) appeals the decision of the Rocky

River Municipal Court denying Mills’s request to obtain a copy of her medical information on

file with the court.   For the reasons set forth below, we affirm this appeal.

        {¶2}     In 2011, Mills was charged by the city of Westlake that falls under the

jurisdiction of the Rocky River Municipal Court, with menacing two children (“Mills I”). On

January 7, 2011, after issuing a criminal protective order at the request of the alleged victims, the

trial judge ordered that a mental health assessment be conducted by Recovery Resources as a

condition of bond.

        {¶3}      Mills was ultimately tried and found not guilty.        The case was closed on

September 16, 2011.

        {¶4}    In 2014, Mills hired an attorney to assist her with obtaining a copy of the Mills I

mental health assessment report to support her legal position in a pending lawsuit, Mills v.

Westlake, Cuyahoga C.P. No. CV-14-826449 (“Mills II”). Mills II asserts causes of action for

malicious prosecution, false imprisonment, abuse of process, civil conspiracy, battery, reckless,

wanton and willful conduct.

        {¶5} Mills’s attorney filed a letter and release with the municipal court requesting a

copy of the mental health assessment report on November 6, 2014. The municipal court issued

an entry refusing to provide the health assessment report, citing R.C. 2951.03 that governs

presentence investigation reports (“PSIs”).

        {¶6} The case before us is of first impression, Mills appeals, arguing that the trial court

erred in, (1) denying Mills’s request for medical records on the basis of R.C. 2951.03; (2)

refusing to allow access to the records that sets an improper precedent; and (3) determining that
the records are the exclusive property of the court. We affirm the trial court’s finding that Mills is

not entitled to the report but we reject the finding that the report is governed by R.C. 2951.03.

       {¶7} This court agrees that the assessment does not fall within the purview of R.C.

2951.03 governing PSIs. The record demonstrates that the trial court ordered a mental health

assessment as a condition of bond promptly after the criminal protective order hearing covering

the alleged menacing victims. A bond report is not a PSI subject to R.C. 2951.03.            State v.

Yates, 2d Dist. Montgomery No. 24823, 2012-Ohio-1781, ¶ 1.

       {¶8} During oral arguments before this court, it was disclosed that the policy and

procedure of the trial court was for the judge to order and receive, directly from the assessment

provider, verbal mental assessment reports regarding conditions of bond. In this case, the

assessment was conducted while Mills was still in custody.

       {¶9} The explanation that there was, in fact, no written report is substantiated by Mills’s

assertion that she was unable to obtain the report from Recovery Resources who responded that

no written report exists. Neither party to the case observed or received a written report.

       {¶10} Speaking further to the policy for nondisclosure of such reports, as the city

argues, the court has broad discretion to order mental health assessments and other information

as a condition of bond pursuant to Crim.R. 46(C)(4). In performing this task, a judge must

delicately and equitably balance the constitutional rights of the defendant while assuring

attendance at court appearances, with the safety of the community:

       In determining the types, amounts, and conditions of bail, the court shall consider
       all relevant information, including but not limited to:

       (1) The nature and circumstances of the crime charged, and specifically whether
       the defendant used or had access to a weapon;

       (2) The weight of the evidence against the defendant;
       (3) The confirmation of the defendant’s identity;

       (4) The defendant’s family ties, employment, financial resources, character,
       mental condition, length of residence in the community, jurisdiction of residence,
       record of convictions, record of appearance at court proceedings or of flight to
       avoid prosecution;

       (5) Whether the defendant is on probation, a community control sanction, parole,
       postrelease control, bail, or under a court protection order.


(Emphasis added.) Crim.R. 46(C). Allen v. Altiere, 11th Dist. Trumbull No. 2015-T-0065,

2015-Ohio-3556, ¶ 19.

       {¶11} The setting of bail is strictly within the purview of the trial court, subject to

statutory and constitutional constructs. Miller v. Reid, 8th Dist. Cuyahoga No. 96110,

2010-Ohio-6485, ¶ 5, 9.

       {¶12} The report was not relevant to the adjudication of the matter, and served only to

allow the judge to consider all pertinent factors in determining the bond amount and conditions

pursuant to the Ohio Rules of Criminal Procedure and Ohio Constitution Article I, Section 9:

       Where a person is charged with any offense for which the person may be
       incarcerated, the court may determine at any time the type, amount, and conditions
       of bail.

Moreover, it was determined that the medical record did not exist as a written report.

Therefore, the court cannot order the release of a report that does not exist.

       {¶13}     Finally, assuming the report existed in written form, it falls within the purview

of Ohio Adm.Code 5122-29-07 covering forensic evaluation services:
        (A) “Forensic evaluation service” means an evaluation resulting in a written
        expert opinion regarding a legal issue for an individual referred by a criminal
        court, domestic relations court, juvenile court, adult parole authority, or other
        agency of the criminal justice system or an ODMH operated regional psychiatric
        hospital. Forensic evaluation service includes all related case consultation and
        expert testimony. Forensic evaluation service also assists courts and the adult
        parole authority to address mental health legal issues such as those referenced in
        paragraph (B) of this rule.

(Emphasis added.) Id.

        {¶14}     The mental health legal issues include, but are not limited to, competency to

stand trial, insanity defenses, presentencing issues, penalty mitigation, domestic violence

evaluations, witness competency, parole issues, and stalking issues. Ohio Adm.Code

5122-29-07(B). On the subject of confidentiality, the code specifically provides:

        (D) Forensic evaluation service shall provide the following standards of
        confidentiality:

        (1) The relationship between the person being evaluated and the examiner is not
        confidential in the usual understanding of that term. A written report shall be
        made to the court or adult parole authority, whether or not the person being
        evaluated cooperates with the examiner. The relationship between the court or
        adult parole authority shall be explained orally and in writing to the person being
        evaluated. It shall be clearly noted that information gathered and expert opinions
        reached by the examiners shall be summarized in a written report and/or
        testimony to the court or adult parole authority or other referring agency.

        (2) Reports to the criminal courts shall be forwarded only to the court that
        referred the person or to other court officials, prosecution and defense attorneys,
        as designated by the referring court. The court may, at its discretion, distribute
        the report, and bears the responsibility for that distribution. Reports to the adult
        parole authority shall be forwarded only to that agency, which may, at its
        discretion, distribute the report, and bears the responsibility for that distribution.
        Reports may be distributed to other parties only with the written authorization of
        the court or adult parole authority, or other referring agency.

(Emphasis added.) Ohio Adm.Code 5122-29-07(D)(1)-(2).

        {¶15} Finally, in the event that a written mental assessment report did exist in this case,

the report is the property of the court:
       (3) Reports of forensic evaluations shall be stored separately from other types of
       client records, and shall be considered the property of the court that ordered them
       or the agency that referred the person.

(Emphasis added.) Ohio Adm.Code 5122-29-07(D)(3).

       {¶16} The trial court’s order is affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the municipal court to

carry this judgment into execution.

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

Rules of Appellate Procedure.



_____________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MARY J. BOYLE, J., CONCUR
