Cheek v. State

• Decision Date: 18 March 1991
• Docket Number: No. 49A04-9006-CV-258,49A04-9006-CV-258
• Citation: 567 N.E.2d 1192
• Parties: In the Matter of the Commitment of Clifton CHEEK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1192

567 N.E.2d 1192

In the Matter of the Commitment of Clifton CHEEK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49A04-9006-CV-258.

Court of Appeals of Indiana Fourth District.

March 18, 1991.

Virginia Dill McCarty, Landman and Beatty, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen P. Mills, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Clifton Cheek (age 20) appeals his involuntary regular commitment to Central State Hospital. He claims that 1) his due process rights were violated because the record does not disclose that he was fully advised of his rights; 2) the evidence is not clear and convincing that he was dangerous or gravely disabled; and 3) the State did not meet its burden of showing that a reasonable attempt had been made to contact willing and responsible family or friends to assist him in living free.

We affirm.

DECISION

At the time of the commitment hearing on February 20, 1990, Cheek had been hospitalized at LaRue Carter Hospital for approximately a year and a half. He had also been hospitalized on earlier occasions, but the record does not reveal whether Cheek had been previously committed nor does it reveal how or why he had been hospitalized at LaRue Carter. The Petition for Involuntary Commitment, a form document, was signed on February 1, 1990, by Jeffrey J. Kellams, M.D., a health officer, psychiatrist, and Cheek's treating physician. Kellams had checked the statement on the form indicating that Cheek presents a substantial risk that he will harm himself, but did not check the item on the form petition which would have indicated that Cheek was also dangerous to others. Kellams also marked the section indicating that Cheek was gravely disabled. The Marion County Sheriff was ordered to serve Cheek the Summons, Petition, and Notice of Rights and Procedures, ¹ and Order Setting the Hearing and Directing Respondent to Appear on February 20, 1990. No return of service appears in the trial court's record. ²

The record indicates that Barbara Collins was appointed by the court on February 6, 1990, to serve as Cheek's counsel. Cheek appeared at the hearing on February 20, 1990, with Collins. At the hearing, there were only two witnesses--Dr. Kellams and Cheek. Kellams testified he had last examined Cheek the day before the hearing. His diagnostic opinion was that Cheek had a mental illness--specifically chronic schizophrenic illness of a catatonic type. Kellams described Cheek's symptoms as follows:

"looseness of thought process, his thought content have at times been bizarre with delusional thinking. Thoughts of killing people. He has exhibited catatonic type behavior as well as catatonic thought process, where his thinking process slows down and becomes markedly labored. Physically it is also extremely difficult at times for him to move, taking as long as fifteen to twenty minutes to progress a distance of twenty-five feet or so. At times he sits motionless for extended periods, long pauses between conversations because of psychic retardation of his thought processes ..."

(R. 6, emphasis added).

Kellams concluded that Cheek was gravely disabled and did not have the ability to provide for his needs because "[h]e is not at this time able to work, able to take care of himself independently with just routine activity of daily living, food preparation, even bathing has been a problem at times, he has had to be escorted into the shower and assisted." (R. 7).

He also testified that Cheek was dangerous to others because Cheek "has shown some belligerence with impulse striking out against nurses and other patients, on one occasion in an unprovoked manner, dived across the nurses' station desk after personnel." (R. 6). Kellams stated that this kind of behavior has subsided over the last several months with the onset of the anti-psychotic medication; however, Kellams stated that Cheek was still impulsive and unpredictable. Kellams further testified that the anti-psychotic medication--Closipin 200 mg taken three times a day--had helped his impulsive behavior to subside; however, he stated that Cheek was "probably not" reliable in taking his medication "without supervision at this time." (R. 7-8). Kellams also testified that progress was guarded, but Closipin has been helpful to some patients. At the time of the hearing, Cheek had been taking Closipin for three or four months.

Kellams testified that Cheek's mother had been faithful in attending and trying to help Cheek, but could not give him the twenty-four hour a day observation and the supervision he needs.

After Kellams testified, Cheek testified as follows:

"[Question by his trial counsel]: And Clifton you told me that you did not want to go to Central State, is that right?

A: No I don't think I will be okay at home, will come out of it at home.

The Court: I can't hear you, you will have to speak up. Why is it that you don't want to go to Central State?

A: Because I think I'm like maybe going to hell, from going to hospitals.

The Court: You're going to hell for going to hospitals?

A: I like it in hospitals. I don't think I really

Q: Did you want to go to your mother's?

A: Yes, I think I would be okay and start functioning right."

(R. 10-11).

The Court entered an Order of Regular Commitment, finding that Cheek suffered from a mental illness, that he was dangerous to others and gravely disabled, and that he was in need of commitment for a temporary period expected to exceed ninety days.

I. Due Process Issues

Cheek contends the commitment should be reversed because there is nothing in the record to show he was served with notice of the hearing or that he was ever advised of his constitutional rights. He also argues that his constitutional right to effective notice was violated because the petition did not inform him that he would have to defend against a charge that he was dangerous to others. ³

Cheek is represented on this appeal by private counsel and and not the court appointed trial counsel. Cheek argues that a person facing involuntary deprivation of his liberty interest is entitled to due process, citing Vitek v. Jones (1980), 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552; IC 16-14-9.1-9(d)-(f), as incorporated into IC 16-14-9.1-10. Cheek also claims that minimum due process requires that a respondent in a commitment proceeding receive adequate notice of the hearing for preparation including receipt of a copy of the petition or order, IC 16-14-9.1-9(e), and is entitled to receive a change of judge. 16-14-9.1-9(f). In re Turner (1982), Ind.App., 439 N.E.2d 201.

We agree that effective and timely notice of all the foregoing rights is essential. Vitek, supra; F.J. v. State (1980), Ind.App., 411 N.E.2d 372. However, we also note that it is not necessary for a sheriff to personally deliver the notice of a regular commitment hearing to an institutionalized individual and that effective notice can be given by delivering or mailing the notice to the superintendent of the institution for delivery to the patient. Atty.Gen.Op.1982, No. 82-2, 120.

The State argues that because Cheek was represented by counsel and no claim has been made that his trial counsel was ineffective, he has waived the issue of violation of his due process rights, citing Marshall v. State (1970), 254 Ind. 156, 258 N.E.2d 628. In Marshall, the appellant claimed he was denied his constitutional right to a public trial, to which he had failed to object at the trial. Our supreme court held:

"It has long been the law in Indiana that a constitutional right may be waived and where appellant has competent counsel a failure to assert the right constitutes a waiver. Without any allegation to the contrary, we must presume that appellant was adequately represented and that the waiver was willingly made with a full appreciation of its nature." (citations omitted).

Id. 258 N.E.2d at 631.

The State also argues that fundamental fairness requires the issue to be waived. An appellant cannot sit idly by without objecting, await the outcome of trial, and thereafter raise an issue for the first time on appeal. Bennett v. State (1973), 159 Ind.App. 59, 304 N.E.2d 827. The State argues that if the issue of lack of notice had been properly raised at the time of the hearing, the Court's record could have been corrected to show that the proper notice of the hearing was given. The State further argues that if his trial counsel had objected on the basis that Cheek was not notified that his dangerousness to others was an issue, the proceeding could have been continued to allow for preparation.

We agree with the State that Cheek has waived these issues. Constitutional errors are not necessarily fundamental errors and may be waived if not properly preserved for appeal. Bryce v. State (1989), Ind.App., 545 N.E.2d 1094. In Bryce, on appeal, the defendant argued that he did not receive due process of law because the record did not contain a written notice of his probation violation. No evidence was presented at the hearing to show that he did or did not receive the required notice. Bryce appeared with counsel at the hearing, demonstrating that--despite the lack of notice in the record--he apparently had received actual notice of the hearing. This court held that--although the record did not reflect that he had received the notice to which he was entitled--he was not denied fundamental due process and he had failed to preserve any error for appeal because he did not object at the hearing.

We agree that the record in a commitment hearing should demonstrate that an individual has been fully apprised of his constitutional rights. "These include the right to receive adequate notice of hearing, to receive a copy of the petition or order, to be present at...