City of Youngstown v. Ortiz

• Decision Date: 01 May 2003
• Docket Number: Case No. 01 CA 239.
• Citation: 2003 Ohio 2238,793 N.E.2d 498
• Parties: CITY OF YOUNGSTOWN PLAINTIFF-APPELLEE v. NELSON ORTIZ DEFENDANT-APPELLANT
• Court: Ohio Court of Appeals

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CITY OF YOUNGSTOWN PLAINTIFF-APPELLEE v. NELSON ORTIZ DEFENDANT-APPELLANT

Case No. 01 CA 239.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Dated May 1, 2003.

Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 01-CRB-1166

Affirmed.

Atty. Dionne M. Almasy City Prosecutor Atty. Benjamin Joltin Assistant Prosecuting Attorney 26 South Phelps Street Youngstown, Ohio 44503, For Plaintiff-Appellee.

Atty. Thomas R. Wright 26 Market Street, 8th Floor P.O. Box 6045 Youngstown, Ohio 44501-6045, For Defendant-Appellant.

JUDGES: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.

OPINION

WAITE, P.J.

{¶1} This matter involves the appeal of a judgment issued by the Youngstown Municipal Court ordering Appellant, Nelson Ortiz, to be committed for treatment so that he may be restored to competency for a criminal trial. We hold that the trial court properly ordered Appellant into treatment so that he could be restored to competency, and we affirm the decision in full.

{¶2} Appellant was charged in Youngstown Municipal Court with one count of aggravated menacing, in violation of R.C. §2903.21, a first degree misdemeanor. He requested a competency hearing, which was held on July 31, 2001.

{¶3} On December 4, 2001, the trial court ruled that Appellant was incompetent to stand trial pursuant to R.C. §2945.38 and Appellant was ordered to undergo treatment at Northcoast Behavioral Health Care Systems in Cleveland. The court found that there was a substantial probability that Appellant would be restored to competency within one year. On December 24, 2001, Appellant filed an appeal of the December 4, 2001, judgment.

Determining the Applicable version of R.C. §2945.38

{¶4} This appeal involves issues arising out of R.C. §2945.38, which gives authority to a trial court to order a defendant to be committed and undergo treatment to be restored to competency to stand trial. R.C. §2945.38 has been revised a number of times in the past few years. The Ohio Supreme Court recently held unconstitutional, in State v. Sullivan, 90 Ohio St.3d 502, 739 N.E.2d 788, that version of the statute contained in S.B. 285, effective July 1, 1997. A subsequent version of the statute, found in S.B. 122, effective February 2, 2002, was not yet in effect when the trial court issued its commitment order in this case. Therefore, the version of the statute which applies to Appellant is found in Am.Sub. S.B. 269, effective July 1, 1996. The relevant portions of R.C. §2945.38, as found in Am.Sub. S.B. 269, are as follows:

{¶5} "(B) If the court finds that the defendant is incompetent to stand trial, it shall also make a finding based on the evidence as to 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.

{¶6} "(C) 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, and it appears to the court, through a review of the report of an examiner under section 2945.371 of the Revised Code or otherwise, that the defendant is mentally ill or mentally retarded, the court may cause an affidavit to be filed in the probate court under section 5122.11 or 5123.71 of the Revised Code alleging that the defendant is a mentally ill person subject to hospitalization by court order or a mentally retarded person subject to institutionalization by court order, as defined in sections 5122.01 and 5123.01 of the Revised Code. When the affidavit is filed, the trial court shall send to the probate court a copy of all written reports of the defendant's mental condition that were prepared pursuant to section 2945.371 of the Revised Code {¶7} "The court may issue the temporary order of detention that a probate court may issue under section 5122.11 or 5123.71 of the Revised Code, to remain in effect until the probable cause or initial hearing in the probate court. Further proceedings in the probate court are then civil proceedings governed by Chapter 5122. or 5123. of the Revised Code.

{¶8} "* * *

{¶9} "(D) If the court finds that the defendant is incompetent to stand trial and it appears to the court, through a review of the report of an examiner or otherwise, that the defendant is mentally ill or mentally retarded, but that there is a substantial probability the defendant will become competent to stand trial within one year if provided a course of treatment, and the offense is one for which the defendant could be incarcerated, if convicted, the court shall order the defendant to undergo treatment at a facility operated by the department of mental health or the department of mental retardation and developmental disabilities, at a facility certified by the appropriate department as qualified to treat mental illness or mental retardation, at a public or private community mental health or mental retardation facility, or it may order private treatment by a psychiatrist or other mental health or mental retardation professional. The order may restrict the defendant's freedom of movement, as the court considers necessary. In determining placement alternatives, the court shall consider the dangerousness of the defendant to self and 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 treatment goals.

{¶10} "No defendant shall be required to undergo treatment under this division for longer than the lesser of fifteen months or one-third of the longest prison term that might be imposed for conviction of a felony or one-third of the longest term of imprisonment that might be imposed for conviction of a misdemeanor if the defendant is found guilty of the most serious crime with which the defendant was charged at the time of the hearing. * * * If the maximum time during which an order of the court may be in effect expires, the court, within three days, shall conduct another hearing under section 2945.37 of the Revised Code to determine if the defendant is competent to stand trial, but at the close of such a hearing, a disposition shall be made under division (A) of this section or if the defendant is found incompetent to stand trial, disposition shall be made as under division (C) of this section.

{¶11} "* * *

{¶12} "(E) The person who supervises the treatment of a defendant ordered to undergo treatment under division (D) of this section shall file a written report with the court and send copies to the prosecutor and defense counsel at the following times:

{¶13} "(1) After the first ninety days of treatment and after each one hundred eighty days of treatment thereafter;

{¶14} "(2) Whenever the person believes the defendant is competent to stand trial;

{¶15} "(3) Whenever the person believes that there is not a substantial probability that the defendant will become competent to stand trial {¶16} "(4) Fourteen days before expiration of the maximum time an order issued under division (D) of this section may be in effect, as specified in that division.

{¶17} "A report shall contain the findings of the examiner, the facts in reasonable detail on which the findings are based, and the opinion of the examiner as to the defendant's competence to stand trial. If the examiner finds that the defendant is incompetent to stand trial, the examiner shall state an opinion in the report on the likelihood of the defendant's becoming competent to stand trial within one year.

{¶18} "(F) Within ten days after receipt of a report required by division (E) of this section, the court shall hold a hearing on the issue of the competence of the defendant to stand trial, as provided in section 2945.37 of the Revised Code. If at the conclusion of the hearing the court finds that the defendant is competent to stand trial, the defendant shall be proceeded against as provided by law. If the court finds that the defendant is incompetent to stand trial, but that there is a substantial probability the defendant will become competent to stand trial before expiration of the time limit specified for treatment under division (D) of this section, the court may modify or continue in effect orders made at a previous hearing, still subject to the maximum time that orders may be in effect, as originally established under division (D) of this section. If the court finds that the defendant is incompetent to stand trial and that there is not a substantial probability that the defendant will become competent to stand trial within the maximum time that orders may be in effect, as originally established under division (D) of this section, the court shall make a disposition as under division (C) of this section." (Emphasis added.)

Final Appealable Order Status

{¶19} Section 3(B)(2), Article IV of the Ohio Constitution only permits Ohio's appellate courts to have subject matter jurisdiction over decisions of lower courts if those decisions are final orders or judgments. A trial court order in a criminal case is final and appealable only if the requirements of R.C. §2505.02 are met. State v. Crago, 53 Ohio St.3d 243, 244, 559 N.E.2d 1353. If an order is not final, then an appellate court has no jurisdiction to review the matter and the appeal must be dismissed. State v. Hubbard, 135 Ohio App.3d 518, 522, 734 N.E.2d 874. Moreover, in the event that this jurisdictional issue is not raised by the parties to the appeal, this Court is required to sua sponte raise the issue. State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St.3d 82, 84, 661 N.E.2d 728.

{¶20} Generally, the final appealable order in a criminal case is the sentencing order. State v. Hunt, 47 Ohio St.2d 170, 174, 1 O.O.3d 99, 351 N.E.2d 106.

{¶21} The Ohio Supreme...