[Cite as State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453.]




           THE STATE OF OHIO, APPELLANT, v. WILLIAMS, APPELLEE.
         [Cite as State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453.]
An involuntary commitment under R.C. 2945.39 does not violate principles of
        equal protection or due process — Because R.C. 2945.39 is civil in nature,
        a person committed under the statute need not be afforded the
        constitutional rights afforded to a defendant in a criminal prosecution.
    (No. 2008-2424 — Submitted October 20, 2009 — Decided June 8, 2010.)
            APPEAL from the Court of Appeals for Montgomery County,
                 No. 22532, 179 Ohio App.3d 584, 2008-Ohio-6245.
                                  __________________
                                SYLLABUS OF THE COURT
1. An involuntary commitment under R.C. 2945.39 does not violate principles of
        equal protection or due process.
2. Because R.C. 2945.39 is civil in nature, a person committed under the statute
        need not be afforded the constitutional rights afforded to a defendant in a
        criminal prosecution.
                                  __________________
        CUPP, J.
        {¶ 1} In this appeal we consider the constitutionality of R.C. 2945.39.
This statute, along with its related statutes, authorizes a common pleas court to
exercise continuing jurisdiction over a criminal defendant who has been charged
with a violent first- or second-degree felony and who has been found incompetent
to stand trial and remains so after the expiration of R.C. 2945.38’s one-year time
frame for restoring competency. R.C. 2945.39 authorizes the common pleas court
to order the involuntary commitment of such a person in a mental-health facility
when the statutory criteria are met. For the reasons that follow, we determine that
                             SUPREME COURT OF OHIO




R.C. 2945.39 is a civil statute and that its provisions and those of related statutes
do not violate principles of due process or equal protection. We therefore reverse
the judgment of the court of appeals, which held to the contrary.
                        I. Facts and Procedural History
       {¶ 2} Defendant-appellee, Thonex Williams, was indicted for rape (a
first-degree felony) and other offenses in December 2005. Williams entered a
plea of not guilty by reason of insanity and underwent a mental-health evaluation.
A judge of the Montgomery County Court of Common Pleas determined,
consistent with the report of the mental-health examiner, that Williams was
incompetent to stand trial and that there was a substantial probability that he could
be restored to competency within the one-year time period prescribed by R.C.
2945.38.    The trial court committed Williams to Twin Valley Behavioral
Healthcare for restorative treatment.
       {¶ 3} The trial court’s review of Williams’s mental status six months
later resulted in a determination that Williams remained incompetent to stand
trial, and the court ordered continuing treatment. As the maximum time under
R.C. 2945.38 for restoration approached, a mental-health-examination report
indicated that Williams remained incompetent to stand trial and opined that he
could not be restored to competency within the statute of limitations for his most
serious charge, rape.
       {¶ 4} The state then orally moved at a hearing for the trial court to retain
jurisdiction under R.C. 2945.39(A)(2).         Williams moved to dismiss the
indictment, arguing that the trial court’s exercise of continuing jurisdiction
pursuant to R.C. 2945.39 would deprive him of his rights to due process and equal
protection. After the state responded by defending the constitutionality of the
court’s retaining jurisdiction, and after an oral hearing, the trial court denied the
motion to dismiss and held that R.C. 2945.39 is constitutional.




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                               January Term, 2010




          {¶ 5} On November 30, 2007, the trial court held a hearing under R.C.
2945.39(A)(2) to decide whether to retain jurisdiction. The trial court found by
clear and convincing evidence that (1) Williams committed the offense of rape
with which he was charged, (2) he was a mentally ill person subject to
hospitalization by court order, (3) he was not competent to stand trial, and (4) the
statutory time limit for restoration treatment had expired. The court rejected
Williams’s arguments that the matter belonged in probate court for a commitment
under R.C. Chapter 5122. The trial court retained jurisdiction subject to R.C.
2945.401 and 2945.402 and ordered Williams to remain hospitalized at Twin
Valley.
          {¶ 6} Upon Williams’s appeal, the Second District Court of Appeals
reversed in a divided decision.       The majority held that R.C. 2945.39 is
unconstitutional on three grounds. First, the majority held that an involuntary
commitment under that statute is “criminal, not civil in nature” and that
Williams’s constitutional rights were therefore violated because he had not
received all the procedural safeguards in his R.C. 2945.39 commitment hearing
that he should have received as a criminal defendant undergoing prosecution. 179
Ohio App.3d 584, 2008-Ohio-6245, 902 N.E.2d 1042, ¶ 49.
          {¶ 7} Second, the appellate majority held that R.C. 2945.39 violated
Williams’s right to equal protection because that statute’s procedures for
committing persons under indictment for a serious felony offense do not also
apply to persons who have been convicted of the same offense and because the
procedures for terminating commitment are more onerous for a person committed
under R.C. 2945.39 than for a person committed under R.C. Chapter 5122. Id. at
¶ 66-67.
          {¶ 8} Third, the appellate majority agreed with Williams’s arguments
that R.C. 2945.39 violated his right to due process because the common pleas
court’s retention of jurisdiction pursuant to the criminal indictment and the



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permitted length of the commitment—the maximum term that he could have
received for the most serious offense in the indictment—are not reasonably
related to the purpose of commitment, which is to protect society from dangerous
persons who are mentally ill. Id. at ¶ 79-82.
       {¶ 9} The dissenter disagreed with the majority’s conclusions on each of
the constitutional grounds considered and would have affirmed the trial court’s
commitment order. Id. at ¶ 85-92 (Wolff, P.J., dissenting).
       {¶ 10} We accepted the state’s appeal under our discretionary jurisdiction
to review three propositions of law regarding whether an involuntary commitment
under R.C. 2945.39 is civil or criminal in nature, whether such a commitment
violates a defendant’s equal-protection rights, and whether such a commitment
violates a defendant’s due-process rights. 121 Ohio St.3d 1438, 2009-Ohio-1638,
903 N.E.2d 1222.
                            II. The Relevant Statutes
       {¶ 11} A summary of the several statutes applicable to cases in which a
defendant charged with a serious offense of violence (here rape, a first-degree
felony) is mentally ill is useful to an understanding of this matter. Under R.C.
2945.38(B)(1) and (C)(1), a common pleas court presiding over a criminal case
involving a defendant charged with a violent first- or second-degree felony who
has been found incompetent to stand trial pursuant to R.C. 2945.37 may require
the defendant to undergo treatment for up to one year. One situation in which the
court is authorized to order treatment is when it finds that there is a “substantial
probability” that the incompetent defendant will become competent to stand trial
within one year while undergoing treatment. R.C. 2945.38(B)(1)(a).
       {¶ 12} If the one-year time for treatment expires and the defendant
remains incompetent to stand trial, R.C. 2945.38(H)(3) directs that further
proceedings must occur under R.C. 2945.39, 2945.401, and 2945.402.             R.C.
2945.39(A) provides two options that can be pursued at that point for a defendant




                                         4
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who is mentally ill.    First, the court or prosecuting attorney may seek the
defendant’s civil commitment in probate court under R.C. Chapter 5122. R.C.
2945.39(A)(1). Second, the court or prosecuting attorney may seek to have the
common pleas court retain jurisdiction over the defendant. R.C. 2945.39(A)(2).
       {¶ 13} To retain jurisdiction, the trial court must find, by clear and
convincing evidence after a hearing, both that the defendant committed the
charged offense and that the defendant is a mentally ill person subject to
hospitalization by court order. R.C. 2945.39(A)(2)(a) and (b). “Mentally ill
person subject to hospitalization by court order” has the same meaning as that set
forth in R.C. 5122.01(B), and includes persons who, because of mental illness,
represent a substantial risk of physical harm to others as manifested by evidence
of recent violent behavior or present dangerousness. R.C. 2945.37(A)(7) and
5122.01(B)(2). See In re Burton (1984), 11 Ohio St.3d 147, 11 OBR 465, 464
N.E.2d 530, paragraph one of the syllabus (a totality-of-the-circumstances test
governs whether a person who is alleged to be mentally ill should be hospitalized
under R.C. 5122.01(B)).
       {¶ 14} If the court does not make both R.C. 2945.39(A)(2) findings, it
must dismiss the indictment and discharge the defendant unless the court or the
prosecuting attorney files for the defendant’s civil commitment in probate court
under R.C. Chapter 5122. R.C. 2945.39(C). But “[a] dismissal of charges under
[R.C. 2945.39(C)] is not a bar to further criminal proceedings based on the same
conduct.” Id.
       {¶ 15} If the court does make both R.C. 2945.39(A)(2) findings, then R.C.
2945.39(D)(1) directs the court to commit the defendant to a hospital operated by
the Department of Mental Health or to another appropriate facility. The court
must order that the defendant be placed in the least-restrictive commitment
alternative available consistent with public safety and the defendant’s welfare, “
giv[ing] preference to protecting public safety.” Id.



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         {¶ 16} Once a court commits a defendant under R.C. 2945.39(D)(1), all
further proceedings are governed by R.C. 2945.401 (which include proceedings
regarding the defendant’s possible placement in nonsecured status; the
termination of the commitment; periodic clinical reports and clinical
recommendations on the defendant’s competence, degree of confinement, and
termination of commitment; and trial court hearing requirements) and 2945.402
(regarding the defendant’s possible conditional release). R.C. 2945.39(D)(3).
         {¶ 17} Under R.C. 2945.401(J)(1)(a) through (c), a commitment pursuant
to R.C. 2945.39 terminates upon the earlier of (a) the trial court’s determination
that the defendant is no longer a mentally ill person subject to hospitalization by
court order, (b) the expiration of the maximum prison term the defendant could
have received if the defendant had been convicted of the most serious offense
charged,1 or (c) the trial court’s termination of the commitment under R.C.
2945.401(J)(2)(a)(ii), which requires findings that the defendant is competent to
stand trial and is no longer a mentally ill person subject to hospitalization by court
order.
         {¶ 18} If the trial court’s jurisdiction is terminated pursuant to R.C.
2945.401(J)(1)(b) because the defendant’s commitment ends upon the expiration
of the maximum prison term the defendant could have received, the court or
prosecuting attorney may seek the defendant’s civil commitment in probate court
under R.C. Chapter 5122. R.C. 2945.401(A).
                                         III. Analysis
         {¶ 19} Each of Williams’s assignments of error in the court of appeals
challenged the facial constitutionality of R.C. 2945.39.                     Williams did not
challenge the way the trial court applied R.C. 2945.39 and related statutes to his
situation. The resolution of this case, therefore, turns on the evaluation of R.C.


1. The parties agree that the applicable maximum term in this case is ten years.




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                                January Term, 2010




2945.39’s facial constitutionality on each of the three grounds considered by the
appellate court.
       {¶ 20} All statutes enjoy a strong presumption of constitutionality. State
v. Cook (1998), 83 Ohio St.3d 404, 409, 700 N.E.2d 570, citing State ex rel.
Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59,
paragraph one of the syllabus. To overcome the presumption, one must prove
beyond a reasonable doubt that the statute is unconstitutional. State v. Bloomer,
122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 41; State v. Ferguson,
120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 12. “In order for a statute
to be facially unconstitutional, it must be unconstitutional in all applications.”
Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278,
2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.
                     A. Is R.C. 2945.39 Criminal in Nature?
       {¶ 21} The appellate court held that an involuntary commitment under
R.C. 2945.39 is criminal rather than civil in nature and that Williams’s
constitutional rights were therefore violated because in his R.C. 2945.39
commitment hearing, he was not afforded the procedural safeguards required by
the Constitution for criminal prosecutions. In so holding, it applied the “intent-
effects test” employed by this court in State v. Cook, 83 Ohio St.3d at 415, 700
N.E.2d 570, to consider whether sex-offender legislation enacted in 1996 was
civil or criminal for purposes of conducting an analysis under the Ex Post Facto
Clause, Section 10, Article I of the United States Constitution.
       {¶ 22} In applying the intent-effects test, a court first considers whether
the legislature intended the statute to be remedial (and therefore civil) or penal
(and therefore criminal). Id. If the intent was that the statute be penal and
criminal, then the inquiry ends. However, if the intent was that the statute be
remedial and civil, then the statute’s specific effects must be examined. The
statute may still be determined to be punitive and criminal if its effects negate a



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remedial intention. Id. at 417-418. See also United States v. Ward (1980), 448
U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742.
       {¶ 23} The intent-effects test was also applied by the United States
Supreme Court in Kansas v. Hendricks (1997), 521 U.S. 346, 117 S.Ct. 2072, 138
L.Ed.2d 501. In that case, the court evaluated the constitutionality of a Kansas
statute permitting the state to institutionalize “sexually violent predators” who had
completed their criminal sentences but who had mental abnormalities or
personality disorders that indicated that they would likely reoffend. Id. at 350-
353. The court held that the statute was civil in nature and did not violate the
Double Jeopardy Clause or the Ex Post Facto Clause. Id. at 370, 371.
       {¶ 24} The statute in Hendricks was determined to be civil for reasons
that included the fact that the statutory provision was in the state’s probate code
and not in its criminal code, id. at 361, the statute did not implicate retribution or
deterrence, which are the primary goals of criminal punishment, id. at 361-363,
and the statute did not require a finding of scienter, id. at 362. The appellate court
in the case at bar distinguished Hendricks, pointing out that R.C. 2945.39 and
other implicated statutes are in the state’s criminal code and that there is no
explicit indication of a civil purpose in R.C. 2945.39. 179 Ohio App.3d 584,
2008-Ohio-6245, 902 N.E.2d 1042, at ¶ 43.
       {¶ 25} Although the appellate court here recognized that R.C. 2945.39 is
meant to protect the public, it read the statute to “suggest” that “protecting the
public from dangerous mentally ill persons is secondary to punishing those
dangerous mentally ill persons who cannot be tried.” Id. at ¶ 45. In support of
this view, the court noted that the criminal indictment remains pending after the
trial court commits the defendant under R.C. 2945.39. Id. at ¶ 46.
       {¶ 26} As to the requirement that the evaluator conducting the periodic
reviews under the statutes must express an opinion as to whether the defendant
remains incompetent to stand trial, the appellate court considered the requirement




                                          8
                                 January Term, 2010




to be an indicator that a key statutory purpose is to “confine” the defendant in
case he regains competency to be tried. Id. The court found fault with the way
the relevant statutes link the maximum length of detention to the maximum
criminal sentence the defendant could have received if convicted. It determined
that this connection bears no relation to the purposes of civil commitment and
shows that the charged offense is not used solely as evidence of dangerousness or
mental illness in determining whether commitment is appropriate. Id. at ¶ 47.
        {¶ 27} According to the appellate court, the statutory framework “strongly
suggests that commitment procedures under R.C. Chapter 5122 are adequate to
address society’s interest in confining dangerous mentally ill persons.” Id. at ¶
48.   The appellate court stated that “although R.C. 2945.39 attempts to
accomplish some of the same goals as civil commitment, the commitment
procedures of R.C. 2945.39 reflect an overriding intent to confine incompetent
defendants who have been charged with serious felonies as if they had been
convicted or until they can be tried.” Id. at ¶ 49.
        {¶ 28} Because the appellate court found that the intent of R.C. 2945.39 is
penal, and that the statute is criminal for that reason, it did not consider the
“effects” prong of the intent-effects test.
        {¶ 29} In contrast, the dissent agreed with the trial court that R.C. 2945.39
is civil in nature and functions as “merely a transfer of commitment authority to
the criminal court from the probate court for mentally ill persons subject to
hospitalization by court order, whose present dangerousness is demonstrated by
the commission of a serious felony.” Id. at ¶ 87 (Wolff, P.J., dissenting).
        {¶ 30} Our consideration of R.C. 2945.39 and related statutes leads us
away from the view that the commitment of an incompetent defendant under R.C.
2945.39 is the functional equivalent of criminally confining the defendant. Nor
do we see any indication of an overriding intent to punish or confine criminal
defendants within the statutory framework.



                                              9
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       {¶ 31} Rather, we view R.C. 2945.39 and related statutes as designed
primarily for the purpose of protecting the public. In particular, we note that R.C.
2945.39(D)(1), which requires the trial court to order the least-restrictive
commitment alternative available consistent with public safety and the
defendant’s welfare if it enters a commitment order under R.C. 2945.39, explicitly
states that the court “shall give preference to protecting public safety.” This
statement gives voice to the predominant intent underlying R.C. 2945.39.
       {¶ 32} The present dangerousness of a specific offender (who, as a
threshold matter, must have been charged with a serious offense, R.C.
2945.38(C)(1), to be subject to the statutes at issue) is the critical component of an
R.C. 2945.39 proceeding. The type of offense charged is a reasonable indicator
of the level of the offender’s dangerousness. The seriousness of the charged
offense plays a permissible and highly relevant role in the trial court’s
determination whether the offender’s commitment under R.C. 2945.39 is
appropriate. See Hendricks, 521 U.S. at 362, 117 S.Ct. 2072, 138 L.Ed.2d 501 (a
person’s prior conduct may permissibly be considered to support a finding of
dangerousness).
       {¶ 33} Moreover, R.C. 2945.39, as with the statute under consideration in
Hendricks, does not require a finding of scienter, nor does it implicate retribution
or deterrence, which are the primary objectives of criminal punishment and the
two most telling factors that a particular statute is criminal in nature. See id. at
361-363. R.C. 2945.39 does not implicate retribution, because it does not affix
culpability for prior criminal conduct.        See id. at 362.       A trial court’s
determination by clear and convincing evidence under R.C. 2945.39(A)(2) that
the defendant committed the offense does not require a finding of scienter and is
merely a factor considered in determining the propriety of the commitment; it
plays no role beyond that limited purpose. R.C. 2945.39 does not implicate
deterrence, because a defendant to whom it applies is unlikely, by the very nature




                                         10
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of his mental illness, to possess the ability to tailor his behavior to the
requirements of the law upon the threat of commitment. See id. at 362-363.
        {¶ 34} Although it is true that R.C. 2945.39 and its related statutes are
contained within Title 29 of the Revised Code, that fact is not dispositive as to
whether these statutes are civil or criminal. The sum of the statutory attributes
must be examined. See Cook, 83 Ohio St.3d at 417, 700 N.E.2d 570. Similarly,
the fact that the statutes refer to the person being considered for commitment as
the “defendant” does not mean that proceedings under R.C. 2945.39 are
necessarily criminal in nature. We view both of these statutory characteristics as
naturally flowing from the reality that the person has been charged with a serious
criminal offense and is subject to proceedings under R.C. 2945.38, and not as any
particular indication of an intent to punish. Moreover, although periodic reviews
of a person committed under R.C. 2945.39 include an assessment of his ability to
stand trial, see R.C. 2945.401(C), that fact does not transform proceedings that are
inherently civil into ones that are criminal.
        {¶ 35} We therefore determine that R.C. 2945.39 is manifestly civil in its
intent. As the dissent in the appellate court noted, “[I]ndividuals committed under
R.C. 2945.39 must be released when they have been found to be no longer a
mentally ill person subject to hospitalization by court order. * * * [T]he release
provision emphasizes that the primary purpose of R.C. 2945.39 is to provide
stricter confinement for mentally ill persons who are particularly dangerous. As
noted by the United States Supreme Court in Hendricks, the confinement of the
dangerously mentally ill ‘is a legitimate nonpunitive governmental objective and
has been historically so regarded.’ 521 U.S. at 363, 117 S.Ct. 2072, 138 L.Ed.2d
501.” 179 Ohio App.3d 584, 2008-Ohio-6245, 902 N.E.2d 1042, ¶ 87 (Wolff,
P.J., dissenting).
        {¶ 36} The question that arises next, under the second prong of the intent-
effects test, is whether the statute operates in such a way that the statute’s effects



                                          11
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negate the civil intent. We see nothing in the effects of the statutory framework
that negates its civil intent. The same features that have caused us to conclude
that the statute is intended to be remedial in nature with an overriding purpose of
protecting the public also support the conclusion that the effects of the statute are
remedial in nature and consistent with the remedial intent. In particular, R.C.
2945.39 does not implicate retribution or deterrence, does not require a finding of
scienter, and provides that commitments under the statute must terminate when
the person is no longer mentally ill and subject to hospitalization by court order.
       {¶ 37} We conclude that R.C. 2945.39 is a civil statute. Consequently, a
person committed under the statute need not be afforded the constitutional rights
afforded to a defendant in a criminal prosecution. The judgment of the court of
appeals on this issue is therefore reversed.
                        B. Equal-Protection Considerations
       {¶ 38} The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution provides, “No State shall * * * deny to any person
within its jurisdiction the equal protection of the laws.” Ohio’s Equal Protection
Clause, Section 2, Article I of the Ohio Constitution, provides, “All political
power is inherent in the people.        Government is instituted for their equal
protection and benefit * * *.”        These two equal-protection provisions are
functionally equivalent and require the same analysis. Eppley v. Tri-Valley Local
School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶
11; State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶
11.
       {¶ 39} The standard of review to be applied is one of rational basis.
Pursuant to this level of review, a statute that does not implicate a fundamental
right or a suspect classification does not violate equal-protection principles if it is
rationally related to a legitimate government interest. Eppley, 122 Ohio St.3d 56,
2009-Ohio-1970, 908 N.E.2d 401, at ¶ 15, citing Menefee v. Queen City Metro




                                          12
                               January Term, 2010




(1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181; Oliver, 123 Ohio St.3d 278, 2009-
Ohio-5030, 915 N.E.2d 1205, ¶ 9.
       {¶ 40} Ohio courts grant substantial deference to the legislature when
conducting an equal-protection rational-basis review. State v. Williams (2000), 88
Ohio St.3d 513, 531, 728 N.E.2d 342. Classifications will be invalidated only if
they “ ‘bear no relation to the state’s goals and no ground can be conceived to
justify them.’ ” State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812
N.E.2d 963, ¶ 7, quoting State v. Thompkins (1996), 75 Ohio St.3d 558, 561, 664
N.E.2d 926.
       {¶ 41} Appellee asserts, and the appeals court agreed, that “[c]ommitment
under R.C. 2945.39 is substantially more restrictive” than under R.C. Chapter
5122. 179 Ohio App.3d 584, 2008-Ohio-6245, 902 N.E.2d 1042, ¶ 64. The court
reasoned that R.C. 2945.39 applies only to persons who have been accused of
committing serious violent offenses and not to persons who have been convicted
of serious violent offenses or to persons who have a history of committing serious
violent offenses but are not under indictment. Id. at ¶ 66. The court then held,
“R.C. 2945.39 cannot reasonably effectuate the goal of providing more restrictive
commitment to those who have committed dangerous crimes.” Id. In addition,
the court below saw no reasonable basis for the “more onerous procedures” it
perceived for terminating commitment under R.C. 2945.39 than for terminating
an ordinary civil commitment under R.C. Chapter 5122. On that basis, the court
found an equal-protection violation. Id. at ¶ 67.
       {¶ 42} Appellee’s arguments that R.C. 2945.39 violates his right to equal
protection rely in large part on Jackson v. Indiana (1972), 406 U.S. 715, 92 S.Ct.
1845, 32 L.Ed.2d 435, and Baxstrom v. Herold (1966), 383 U.S. 107, 86 S.Ct.
760, 15 L.Ed.2d 620. In Jackson, the court held that the involuntary commitment
of a defendant under an Indiana statute that amounted to “condemning him in
effect to permanent institutionalization without the showing required for



                                         13
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commitment or the opportunity for release afforded by” statutes applicable to
those not charged with offenses deprived the defendant of equal protection. Id. at
729, 92 S.Ct. 1845, 32 L.Ed.2d 435.
       {¶ 43} In Baxstrom, the court held that the involuntary commitment under
a New York statute of a mentally ill person who had completed his criminal
sentence violated equal protection because the person did not receive the benefit
of a judicial hearing to determine whether he was dangerous, a hearing he would
have had if he had not been in prison at the time the civil commitment proceeding
was instituted. Id. at 110. The court stated that there was “no conceivable basis
for distinguishing the commitment of a person who is nearing the end of a penal
term from all other civil commitments.” Id. at 111-112.
       {¶ 44} The state argues that R.C. 2945.39 does not violate equal-
protection rights, because its procedures are justified by the state’s interest in
restraining mentally ill persons subject to hospitalization who have committed a
serious crime. We agree.
       {¶ 45} We accept as valid the arguments presented by the state and by the
amicus curiae, Attorney General of Ohio, that a commitment under R.C. 2945.39
and related statutes has many of the same attributes as a commitment under R.C.
Chapter 5122, and that the differences between the two are not as substantial as
appellee asserts. For example, R.C. 2945.39(A)(2)(b) uses the term “mentally ill
person subject to hospitalization by court order” and defines that term exactly as it
is defined in R.C. 5122.01(B).        See R.C. 2945.37(A)(7).      Moreover, R.C.
2945.401(B) states that provisions of R.C. Chapter 5122 “regarding
hospitalization or institutionalization shall apply to the extent they are not in
conflict with this chapter.”
       {¶ 46} This court in In re Burton, 11 Ohio St.3d at 150-151, 11 OBR 465,
464 N.E.2d 530, upheld the constitutionality of R.C. Chapter 5122’s standards for
involuntary commitments in the face of due-process and equal-protection




                                         14
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challenges. Certainly, to the extent that R.C. 2945.39 incorporates many of those
same standards, it does not violate equal-protection principles.
        {¶ 47} R.C. 2945.39(A)(2)’s specific requirement that a court must make
a threshold finding (by clear and convincing evidence) that the defendant
committed the crimes he is charged with before ordering the defendant’s
commitment is a requirement not found in R.C. Chapter 5122. But this does not
create an equal-protection violation, because the standards for commitment in this
regard under R.C. 2945.39 are actually stricter than those under R.C. Chapter
5122.   This factor distinguishes this case from Jackson, in which an equal-
protection violation was found in part because the accused person in that case was
subjected to “a more lenient commitment standard” than was applicable to others.
(Emphasis added.) See 406 U.S. at 730, 92 S.Ct. 1845, 32 L.Ed.2d 435.
        {¶ 48} The state concedes that there are some differences between the
procedures by which a person is involuntarily committed through the probate
court under R.C. Chapter 5122 and those procedures by which a person is
involuntarily committed under R.C. 2945.39, as well as in the respective
procedures once the commitment has been ordered.              For example, those
committed by a probate court are given earlier initial review hearings, compare
R.C. 5122.15(C) and (H) with R.C. 2945.401(C); do not face the same level of
scrutiny as to public-safety concerns, compare, e.g., R.C. 5122.15(C) with R.C.
2945.39(A)(2) and (D)(1); can more easily have their restrictions within the
institution reduced, compare R.C. 5122.20 with R.C. 2945.401(D); and have less
stringent procedures for the termination of the commitment, including possible
termination of commitment by a chief medical officer pursuant to R.C. Chapter
5122 without the probate court’s approval, compare R.C. 5122.21(A) with R.C.
2945.401(I).
        {¶ 49} These statutory differences, however, are justified by the differing
contexts of the two types of commitments. The fact that the subject of an R.C.



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2945.39 commitment has been found to be a danger to others and also has been
found to have committed a violent felony, such as the rape in this case,
fundamentally distinguishes an R.C. 2945.39 commitment from one under R.C.
Chapter 5122. It is a distinction that may permissibly be taken into account.
Public-safety concerns reasonably justify assigning to the common pleas court
that entered the commitment order an important role in the committed person’s
possible reduction in restrictions and in the determination of whether the
commitment should be terminated. Although a person committed under R.C.
2945.39 may have to wait longer to receive an initial review hearing than a person
committed under R.C. Chapter 5122, see R.C. 2945.401(C), that difference is not
unreasonable, because such a person has already been subjected to the extensive
evaluation procedures of R.C. 2945.38.
       {¶ 50} Even though R.C. 2945.39 concerns only persons who are under
indictment and does not include others with a history of committing serious
felony offenses who are not under indictment, the General Assembly “could
rationally conclude that an individual’s present involvement in the criminal-
justice system indicates a greater degree of dangerousness.” 179 Ohio App.3d
584, 2008-Ohio-6245, 902 N.E.2d 1042, at ¶ 88 (Wolff, P.J., dissenting).
Moreover, “because those committed under R.C. 2945.39 are particularly prone to
commit serious felonies, the legislature could rationally distinguish [such persons
from those] persons committed through the probate court for purpose of release
procedures. * * * [S]ociety has a substantial interest in ensuring that those
individuals who have been deemed particularly dangerous truly are no longer
mentally ill persons subject to hospitalization by court order prior to their release
from commitment.” Id.
       {¶ 51} Upon review, we hold that the procedures in R.C. 2945.39 and its
related statutes that are less favorable to the person facing commitment than are
the provisions governing a probate court commitment under R.C. Chapter 5122




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are rationally related to legitimate government interests.      Consequently, R.C.
2945.39 withstands equal-protection scrutiny, and appellee has not successfully
borne his burden of establishing an equal-protection violation. See State v. Bretz
(Dec. 30, 1999), 5th Dist. No. CA-98-001, 2000 WL 93739, * 9 (holding that an
involuntary commitment under R.C. 2945.39 does not violate equal-protection
rights).
           {¶ 52} Because we hold that an involuntary commitment under R.C.
2945.39 does not violate equal protection, the judgment of the court of appeals is
reversed on this issue also.
                            C. Due-Process Considerations
           {¶ 53} The inquiry into whether R.C. 2945.39 violates due-process
protections is also governed by the rational-basis standard. As stated in Jackson
v. Indiana, 406 U.S. at 738, 92 S.Ct. 1845, 32 L.Ed.2d 435, “due process requires
that the nature and duration of commitment bear some reasonable relation to the
purpose for which the individual is committed.” See also State v. Sullivan (2001),
90 Ohio St.3d 502, 506, 739 N.E.2d 788.
           {¶ 54} A civil commitment for any purpose is a significant deprivation of
liberty and due-process protections must be afforded to a person facing
involuntary commitment. Addington v. Texas (1979), 441 U.S. 418, 425, 99 S.Ct.
1804, 60 L.Ed.2d 323. However, the right to be free from physical restraint is not
absolute; the United States Supreme Court has consistently upheld statutes
authorizing the forcible civil commitment of persons who are unable to control
their behavior and who pose a danger to the safety of the public, “provided the
confinement takes place pursuant to proper procedures and evidentiary
standards.” Hendricks, 521 U.S. at 356-357, 117 S.Ct. 2072, 138 L.Ed.2d 501;
Foucha v. Louisiana (1992), 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437.
           {¶ 55} In arguing that R.C. 2945.39 fails to comport with due process,
appellee places great emphasis on the United States Supreme Court’s statement in



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Jackson, 406 U.S. at 738, 92 S.Ct. 1845, 32 L.Ed.2d 435, that “a person charged
by a State with a criminal offense who is committed solely on account of his
incapacity to proceed to trial cannot be held more than the reasonable period of
time necessary to determine whether there is a substantial probability that he will
attain that capacity in the foreseeable future.” Appellee also relies on this court’s
decision in State v. Sullivan, 90 Ohio St.3d 502, 739 N.E.2d 788. Sullivan held
that former R.C. 2945.38, requiring all defendants found incompetent to stand
trial to undergo treatment for a set amount of time for the purpose of restoring
them to competency, violated due-process protections because the defendant’s
treatment could not be discontinued even if a court found that the defendant could
not be restored to competency in the foreseeable future.2
        {¶ 56} The state asserts that the court of appeals erred when it concluded
by relying on Sullivan and other decisions that due process requires all efforts to
restore competency to cease upon a court determination that a defendant is not
restorable to competency within a reasonable time.
        {¶ 57} The appellate court held that “[b]ecause commitment under R.C.
2945.39 involves attempts at restoration to competency beyond a reasonable
period of time,” a commitment under that statute amounts to a due-process
violation. 179 Ohio App.3d 584, 2008-Ohio-6245, 902 N.E.2d 1042, ¶ 79. Due
process requires that an indictment against a criminal defendant be dismissed
upon a finding that the defendant cannot be restored to competency, the appeals
court reasoned, because “it is fundamentally unfair for an incompetent defendant
to have charges pending indefinitely when there is little hope that he may [be]


2. The General Assembly, in Am.Sub.S.B. No. 122, 149 Ohio Laws, Part I, 1081, effective
February 20, 2002, amended the provisions of former R.C. 2945.38 that this court struck down in
Sullivan to address the holding in that case. See id. at Section 3, 1097, and Legislative Service
Commission Final Bill Analysis, Am.Sub.S.B. No. 122, 124th General Assembly,
http://www.lsc.state.oh.us/analyses124/01-sb122.pdf (explaining the amendments and discussing
Sullivan). No aspects of R.C. 2945.38, including the amendments enacted in the wake of Sullivan,
are at issue in this case.




                                               18
                                January Term, 2010




brought to trial and exonerated.” Id. at ¶ 81. Finally, the appellate court held that
R.C. 2945.39(A)(2)(a)’s use of a clear-and-convincing-evidence standard rather
than a proof-beyond-a-reasonable-doubt standard for determining whether an
incompetent defendant committed the charged offense violates due process. Id. at
¶ 82.
        {¶ 58} The appellate court’s conclusions appear to be based on a belief
that the statute’s primary goals are to punish the defendant and restore his
competency to stand trial. However, as discussed in our analysis above, R.C.
2945.39 is a civil statute with a primary goal of protecting the public. It is of
great significance to our due-process inquiry that R.C. 2945.39(D)(1) requires the
court to order the least-restrictive commitment alternative available consistent
with public safety and the defendant’s welfare, while also emphasizing that the
court “shall give preference to protecting public safety.”
        {¶ 59} It is apparent that a person committed under R.C. 2945.39 is not
committed “solely” on account of his incapacity to proceed to trial, unlike the
defendant in Jackson, 406 U.S. at 738, 92 S.Ct. 1845, 32 L.Ed.2d 435. Rather,
such a person is committed only after being found by clear and convincing
evidence to be mentally ill and subject to hospitalization by court order under
R.C. 5122.01(B), through the application of R.C. 2945.39(A)(2) and
2945.37(A)(7), and being found to be a danger to the public because he was
determined to have committed the offense with which he was charged. See Bretz,
5th Dist. No. CA-98-001, 2000 WL 93739, * 7 (upholding the constitutionality of
R.C. 2945.39, and distinguishing Jackson because in Jackson, “there was no
‘affirmative proof’ that the accused had committed criminal acts or was otherwise
dangerous”). If the person at some point is no longer mentally ill and subject to
hospitalization by court order, his commitment under R.C. 2945.39 will terminate,
subject to additional court proceedings. R.C. 2945.401(J)(1)(a). These statutory




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features are similar to those of the statute upheld in Hendricks. See 521 U.S. at
352-353, 117 S.Ct. 2072, 138 L.Ed.2d 501.
       {¶ 60} The      clear-and-convincing-evidence      standard     of     R.C.
2945.39(A)(2) for determining whether the defendant committed the crime
charged does not violate the defendant’s due-process rights.       Instead, a trial
court’s finding under this evidentiary standard that the defendant has committed
the offense charged is used only to determine the defendant’s degree of
dangerousness.
       {¶ 61} The state asserts that Sullivan does not support appellee’s
argument that his due-process rights were violated here. The purpose of the
commitment in Sullivan, which involved the former version of R.C. 2945.38, was
to restore the defendant to competency in order to stand trial. Because there was
no probability that competency could be restored within the time set by the former
statute, the mandatory treatment period bore no rational relationship to the
purpose of commitment, and, therefore, the defendant’s due-process rights were
violated. See Sullivan, 90 Ohio St.3d at 508, 739 N.E.2d 788. Our limited
decision in Sullivan, however, has no application to this case, which involves the
distinctly different procedures of R.C. 2945.39. The overriding purpose of this
statute is to protect the public from a person who is dangerously mentally ill, has
perpetrated felonious conduct, and cannot presently be tried because of his mental
incompetency.
       {¶ 62} Thus, we conclude that R.C. 2945.39 and 2945.401 do not violate a
defendant’s due-process rights by allowing the indictment to remain intact, by
allowing continued efforts to restore the defendant to competency, or by
permitting a defendant to be committed for a term equal to the maximum term of
imprisonment that he could receive for the most serious offense charged.
“Although * * * a defendant may be committed until the expiration of the
maximum term of imprisonment that he could have received for the charged




                                        20
                                January Term, 2010




offense, due process is satisfied by the fact that he may be released sooner if he is
no longer subject to hospitalization by court order.” Williams, 179 Ohio App.3d
584, 2008-Ohio-6245, 902 N.E.2d 1042, at ¶ 90 (Wolff, P.J., dissenting).
Moreover, as the dissent correctly observed, principles of due process do not
prevent a person committed under R.C. 2945.39 from being reevaluated for
competency. If competency is restored while the person is still mentally ill, he
can “be tried on the offense while remaining committed for his mental illness.
R.C. 2945.401(J)(2).” Id. at ¶ 91.
       {¶ 63} For the reasons expressed herein, we conclude that the nature and
duration of the commitment that occurs under R.C. 2945.39 bear a reasonable
relationship to the purpose for which the person is committed. See Jackson, 406
U.S. at 738, 92 S.Ct. 1845, 32 L.Ed.2d 435.
       {¶ 64} We hold that an involuntary commitment under R.C. 2945.39 does
not violate principles of due process. The judgment of the court of appeals is
reversed on this issue.
                                 IV. Conclusion
       {¶ 65} The crux of appellee’s arguments is that every involuntary
commitment of the type at issue here should occur through a probate court
proceeding under R.C. Chapter 5122, but we hold that such a practice is not
constitutionally required. It is reasonable to provide, as R.C. 2945.39 does, that a
common pleas court that already has had extensive interaction with a defendant
under R.C. 2945.38 can continue to exercise jurisdiction over that defendant; an
involuntary commitment in this situation need not be exclusively pursued in a
probate court to be constitutional.     And even though an R.C. Chapter 5122
commitment may be one way to handle the involuntary commitment of a
defendant who has committed a serious offense of violence and who is not
presently competent to stand trial, the availability of procedures under R.C.
Chapter 5122 does not stand in the way of the General Assembly’s ability to



                                         21
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create alternative procedures for persons who pose an especially high degree of
risk to the safety of the public.
        {¶ 66} We hold that because R.C. 2945.39 is civil in nature, a person
committed under the statute need not be afforded the constitutional rights afforded
to a defendant in a criminal prosecution. We also hold that an involuntary
commitment under R.C. 2945.39 does not violate principles of equal protection or
due process. The judgment of the court of appeals is reversed, and the judgment
of the trial court is reinstated.
                                                               Judgment reversed.
        LUNDBERG STRATTON, O’CONNOR, and O’DONNELL, JJ., concur.
        PFEIFER and LANZINGER, JJ., dissent.
        BROWN, C.J., not participating.
                                    __________________
        LANZINGER, J., dissenting.
        {¶ 67} I respectfully dissent from the majority’s holding that R.C. 2945.39
is civil in nature.
        {¶ 68} First, the General Assembly enacted R.C. 2945.39 as part of
Ohio’s criminal code. Ohio already has a civil commitment process pursuant to
R.C. Chapter 5122 regarding those who are mentally ill and R.C. Chapter 5123
regarding those who are developmentally disabled.
        {¶ 69} Second, tying the length of a criminal defendant’s commitment to
the maximum possible prison term for the most serious offense also indicates that
the commitment is criminal in nature. If the maximum period of commitment is
reached without the defendant’s becoming competent to stand trial, he or she is
discharged, unless the state seeks civil commitment. R.C. 2945.401(J)(1)(b). In
other words, the general division of the common pleas court no longer has the
authority to punish the defendant for the offense once the time has been served.




                                            22
                                January Term, 2010




       {¶ 70} Finally, unlike a person committed under the civil process, a
defendant who is committed under R.C. 2945.39 remains under a pending
indictment. The proceeding occurs as part of the defendant’s criminal case and,
therefore, the defendant should be afforded all the rights of a criminal defendant.
       PFEIFER, J., concurs in the foregoing opinion.
                              __________________
       Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram and Melissa M. Ford, Assistant Prosecuting Attorneys, for
appellant.
       Anthony Comunale, for appellee.
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Stephen P. Carney, Deputy Solicitor, and Jeffrey R. Loeser, Assistant Solicitor,
urging reversal for amicus curiae, Ohio Attorney General.
                            ______________________




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