State v. John E. Thomas
| Decision Date | 27 January 1987 |
| Docket Number | 1789,87-LW-0174 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. John E. THOMAS, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Ohio Legal Rights Service, Thomas R. Wetterer, Jr., Columbus, for appellant.
Mell G Underwood, Assistant Attorney General, New Lexington, for appellee State of Ohio, Department of Mental Health.
Charles Cooper, Lawrence County Assistant Prosecuting Attorney Ironton, for appellee.
DECISION AND JUDGMENT ENTRY
This is an appeal from a judgment entered by the Lawrence County Court of Common Pleas continuing the commitment of John E Thomas, defendant below and appellant herein, who had previously been acquitted of a criminal offense upon a finding of not guilty by reason of insanity, in the Timothy B. Moritz Forensic Unit (TBMFU) at the Central Ohio Psychiatric Hospital (COPH) for a period of 90 days.
Appellant assigns the following error:
"THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN CONTRARY TO THE WEIGHT OF THE EVIDENCE THE COURT DENIED THE DEPARTMENT OF MENTAL HEALTH'S REQUEST TO TRANSFER APPELLANT FROM A MAXIMUM SECURITY FACILITY TO A LESS RESTRICTIVE HOSPITAL SETTING.
A.Before a patient may be confined in a maximum security setting, the due process clause of the fourteenth amendment of the United States Constitution requires that the evidence must show that his behavior creates an imminent danger to the physical safety of other patients or staff.
B.The proof presented at the hearing did not demonstrate by clear and convincing evidence that Timothy B. Moritz Forensic Unit is the least restrictive alternative available as required by R.C. Sections 2945.40 and 5122.15"
In January 1981, appellant was found not guilty by reason of insanity of the stabbing murder of his 9 year old son and was initially committed to the Lima State Hospital in Allen County, Ohio. On June 1, 1982, appellant was committed for two years to the Athens Mental Health Center (AMHC) pursuant to R.C. 2945.10 and R.C. 5122.15. On July 19, 1984, a hearing was held at which appellant moved to dismiss any commitment order in that the two year order of commitment had expired and requested a continuance to allow for completion of an independent evaluation and preparation for hearing. The trial court denied both motions and extended appellant's commitment at AMHC for another two years. Appellant appealed the trial court order to this court and on August 20, 1985, we entered judgment reversing the trial court order in part, and remanding for the holding of a full hearing on appellant's continued commitment, for which he would be afforded an independent examination, reasonable notice, and an adequate opportunity to prepare with the assistance of counsel pursuant to R.C. 5122.15.
On September 11, 1985, appellant filed a motion for the appointment of an independent expert to conduct an independent evaluation of appellant. On the same date, the trial court granted appellant's motion, appointing C.H. Harrington to perform an independent examination of appellant. On October 18, 1985, the hearing ordered by this court was held and the following pertinent evidence was adduced.
Dr. Ofelia Borlongan, a psychiatrist who had been appellant's attending physician while he had been at the maximum security TBMFU of COPH in Franklin County, Ohio testified that based upon her evaluation of appellant, he was mentally ill due to a substantial disorder of mood, though he was presently in remission, and that the civil mental hospital portion of COPH rather than TBMFU would be the least restrictive environment at present. According to Dr. Borlongan, if appellant were transferred to the civil mental hospital, he would first be placed in a locked ward without any privileges and would gradually obtain privileges that would include being able to walk on the outside hospital grounds.
Dr. Borlongan further testified that after appellant had acquired privileges at a prior civil mental hospital, AMHC, and had been there at least two years, he became "uncooperative and dissatisfied" with the treatment there and left the hospital twice without permission, once travelling to Corpus Christi, Texas and being away from the facility for two months. Dr. Borlongan testified that the latter walk away resulted in appellant's commitment at TBMFU, that the civil mental hospital portion of COPH was a "campus type atmosphere" without fences from which those with privileges could easily walk away, and that if appellant were merely sent to a locked ward at COPH without privileges there would be no advantage to such placement over TBMFU.
C.H. Harrington, the court appointed clinical psychologist who conducted an examination of appellant, testified that he would recommend appellant be transferred to the civil mental hospital portion of COPH and that appellant might first be placed for 90 days on a locked ward. Harrington further testified that appellant had suffered from a serious emotional or thought disorder that was in remission and that he did not recommend that appellant be released into the community. On November 13, 1985, the trial court entered judgment continuing the commitment of appellant in TBMFU at COPH for 90 days. The record does not contain any evidence of a stay of the trial court's judgment pending appeal.
Appellant asserts that the trial court erred when, contrary to the weight of the evidence, it denied the Ohio Department of Mental Health's request to transfer appellant from a maximum security facility to a less restrictive hospital setting. Appellant argues that he should have been transferred to the civil mental hospital part of COPH from the maximum security TBMFU.
In the instant case, the trial court, on November 13, 1985, ordered appellant recommitted to the maximum security hospital facility for 90 days. The record does not indicate that this order was ever stayed pending appeal. It is axiomatic that a court of appeals will not review matters that are moot and such a proceeding will ordinarily be dismissed if the order of judgment which the appellant seeks to reverse has not been stayed. State v. Berger (1984), 17 Ohio App.3d 8; Village of Oakwood v. Sexton (1983), 10 Ohio App.3d 160; State v. Wilson (1975), 41 Ohio St.2d 236, cert. denied (1975), 423 U.S. 936; Annotation, When Criminal Case Becomes Moot so as to Preclude Review of or Attack on Conviction or Sentence (1966), 9 ALR 3d 462.
Where a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction. Wilson, supra, at Syllabus; Berger, supra; Village of Oakwood, supra. Here, although appellant was not convicted of a criminal offense, he was subject to hospitalization as a not guilty by reason of insanity acquitee pursuant to R.C. 2945.40 and R.C. 5122.15. In that appellant has effectively served the 90 day order appealed from pending his appeal, we can only reach the merits if he suffered some "collateral disability" or "loss of civil rights" from the trial court's 90 day order recommitting him to TBMFU of COPH rather than the asserted less restrictive environment of the civil mental hospital part of COPH.
The length of time served, in and of itself, even though it exceeds the statutory maximum that might be imposed under the sentence, does not give rise to those types of adverse collateral consequences needed to avoid mootness. In re Klepper (1977), 49 Ohio St.2d 211; Berger, supra. In Wilson, supra at p. 237, the Ohio Supreme Court noted the following examples of collateral disabilities resulting in a loss of civil rights sufficient to avoid a dismissal on mootness grounds:
...
To continue reading
Request your trial