State v. Henderson , 2014 Ohio 2991 ( 2014 )


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  • [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.
    SGF/sg 603
    

Document Info

Docket Number: 13-CA-61

Citation Numbers: 2014 Ohio 2991

Judges: Farmer

Filed Date: 7/2/2014

Precedential Status: Precedential

Modified Date: 2/19/2016