State v. Hix

527 N.E.2d 784, 38 Ohio St. 3d 129, 1988 Ohio LEXIS 241

• Court: Ohio Supreme Court
• Decided: August 3, 1988
• Docket: No. 87-2166
• Status: Published

Opinions

Douglas, J.

This cause raises a single issue. Does R.C. 2945.39 mandate that a defendant who pleads not guilty by reason of insanity be provided with an independent examiner of his choice to determine defendant’s sanity? For the following reasons, we find that a defendant has no such automatic entitlement.

R.C. 2945.39 provides in pertinent part:

“(A) If a defendant enters a plea of not guilty by reason of insanity, the court may order one or more, but not more than three, evaluations of the defendant’s mental condition at the time of the commission of the offense.

“(3) * * * If more than one examination is ordered, the prosecutor and the defendant may recommend to the court an examiner whom each prefers to have perform one of the examinations.

«(0 * * *

“If the court does not designate an examiner recommended by the defendant pursuant to division (A) of this section, the court shall inform the defendant that he may have independent expert evaluation and that if he is unable to obtain independent expert evaluation, it will be obtained for him, at public expense if he is indigent.”

The interpretation of R.C. 2945.39 has led to conflict between courts of appeals in this state. In State v. Marshall, supra, the Court of Appeals for Cuyahoga County held that a defendant in a criminal case has no absolute right to an independent psychiatric evaluation pursuant to R.C. 2945.39. In a contrary holding, the Court of Appeals for Athens County, in Semenchuk, supra, held that “* * * when an evaluation of the defendant’s mental condition is ordered pursuant to R.C. 2945.39(A), a mandatory duty rests upon the court to inform the defendant of his right of an independent evaluation and, if requested, to obtain it for him, if indigent, at public expense.” It is our view that the correct interpretation is expressed by Marshall, supra.

R.C. 2945.39 must be construed to give effect to the legislative intent. In determining the legislative intent, a court must first look to the language of the statute itself. Provident Bank v. Wood (1973), 36 Ohio St. 2d 101, 105, 65 O.O. 2d 296, 298, 304 N.E. 2d 378, 381. The statutory language is clear. R.C. 2945.39(A) states that the trial court has discretion in whether to order one psychiatric examination or whether to order more examinations, up to a limit of three. The statute further provides that “* * * if more than one examination is ordered * * * [emphasis added],” the defendant may recommend an examiner he prefers. R.C. 2945.39(C) states that if the coürt does not designate an examiner that defendant recommended “* * * pursuant to division (A) of this section * * * [emphasis added],” then the defendant will be entitled to an independent psychiatric evaluation.

The conclusion that logically flows from this statutory language is that, pursuant to the statute, a defendant has the right to recommend an examiner only if the court orders more than one examination. If the court does order more than one examination, but refuses the recommendation of the defendant as to the examiner, only-then does the duty arise for the court to inform defendant that defendant has the right to an independent psychiatric examination, which, if defendant is indigent, will be paid for at state expense.

Appellee asserts that such an argument would render R.C. 2945.39(C) a nullity. This is not the case. Division (C) operates to grant defendant an independent evaluation, but only if the court orders more than one examination and the court refuses an examiner recommended by the defendant.

The language used by the General Assembly in drafting the statute is straightforward and unambiguous. The trial court is granted the discretion¹ to decide if more than one psychiatric examination is necessary. The defendant may recommend an examiner only if the trial court orders more than one examination. If the trial court fails to pick an examiner that defendant has recommended, only then does the defendant have the right to an independent examination.

The meaning of the statute is evident. “Absent ambiguity, a statute is to be construed without resort to a process of statutory construction.” Ohio Dental Hygienists Assn. v. Ohio State Dental Bd. (1986), 21 Ohio St. 3d 21, 23, 21 OBR 282, 284, 487 N.E. 2d 301, 303.

The General Assembly could easily have achieved the result urged by appellee. The language of the statute could have stated that whenever a defendant pleads not guilty by reason of insanity, the defendant is entitled to an independent psychiatric evaluation by an examiner of the defendant’s choice. The legislature, however, did not choose to follow that course. We will not interpret the plain language to mean something it does not say. “* * * In examining the actual language of a statute, words should be given their common, ordinary and accepted meaning unless the legislature has clearly expressed a contrary intention.” State v. Singer (1977), 50 Ohio St. 2d 103, 108, 4 O.O. 3d 237, 240, 362 N.E. 2d 1216, 1220 (citing Youngstown Club v. Porterfield [1970], 21 Ohio St. 2d 83, 86, 50 O.O. 2d 198, 200, 255 N.E. 2d 262, 264).

In support of the position that the state must notify a defendant of his right to an independent psychiatric evaluation, appellee cites the holding of Ake v. Oklahoma (1985), 470 U.S. 68. That case held that “when a defendant * * * [makes] a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the [United States] Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.” Ake, supra, at 74. This, appellee asserts, means a defendant must be given the right to an independent psychiatric evaluation, as contemplated in R.C. 2945.39(C).

In Ake, supra, however, the United States Supreme Court did not say how a system of granting psychiatric evaluations should be implemented. Instead, the court left “* * * to the States the decision on how to implement this right.” Ake, supra, at 83.

Ohio’s chosen method of implementation, R.C. 2945.39, does not violate the principle that an indigent defendant have “* * * an adequate opportunity to present * * * [his] claims fairly within the adversary system.” Ross v. Moffitt (1974), 417 U.S. 600, 612. R.C. 2945.39(A) provides that a defendant will undergo a psychiatric evaluation, as required by Ake. The trial court, however, has discretion as to whether more than one examination need be undertaken.

In the case at bar, the trial court, pursuant to R.C. 2945.39 and the holding in Ake, supra, ordered a psychiatric evaluation of appellee, with results of the examination being given to both the prosecution and counsel for appellee. Simply because the result of the examination was not to appellee’s liking does not automatically give appellee the right to an independent evaluation by the examiner of his choice.² A defendant, here appellee, does not have the right to an independent psychiatric examiner, pursuant to R.C. 2945.39(C), unless the trial court has ordered more than one psychiatric evaluation and the trial court has refused to appoint an examiner recommended by the defendant.

Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court is reinstated.

Judgment reversed.

Moyer, C.J., Locher and Holmes, JJ., concur. Sweeney, Wright and H. Brown, JJ., dissent.

1 R.C. 2945.39(A) provides “* * * the court may order one or more, but not more than three, evaluations * * *.” (Emphasis added.) See, also State v. Keaton (1967), 9 Ohio App. 2d 139, 38 O.O. 2d 166, 223 N.E. 2d 631.

2 The parenthetical comment, made by the court of appeals and repeated in appellee’s brief, that had the psychiatric evaluation of Hix turned out differently the state would have been able to undertake an additional psychiatric evaluation of Hix, is incorrect. R.C. 2945.39 authorizes only the court to order a psychiatric examination.