[Cite as State v. Hudkins, 2022-Ohio-249.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-07-066
: OPINION - vs - 1/31/2022 :
ELI P. HUDKINS, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CR36680
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.
Mark W. Raines, for appellant.
HENDRICKSON, J.
{¶1} Appellant, Eli P. Hudkins, appeals from a decision of the Warren County Court
of Common Pleas ordering him to be committed to Summit Behavioral Healthcare ("SBH")
to undergo treatment to restore him to competency after concluding that an entire new
restoration period commenced following the court's second finding of incompetency after a
period of competency.1
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for purposes of issuing this opinion. Warren CA2021-07-066
{¶2} On May 11, 2020, Hudkins was indicted on one count of menacing by stalking,
a felony of the fourth degree, and one count of violating a protection order, a misdemeanor
of the first degree. Defense counsel filed a motion for a competency and sanity evaluation,
asking the trial court to order an evaluation of Hudkins' current mental condition as well as
his mental condition at the time the offenses were committed. The trial court granted the
motion and ordered an evaluation on July 16, 2020.
{¶3} On July 30, 2020, following a hearing in which the trial court considered the
report of Dr. Carla S. Dreyer, Psy.D., the trial court found Hudkins incompetent to stand
trial. The court determined that there was a substantial probability Hudkins could be made
competent to stand trial within six months if provided with a course of treatment and it
ordered Hudkins to engage in treatment to restore his competency at SBH. Hudkins
entered treatment at SBH on August 13, 2020.
{¶4} On January 14, 2021, Dr. April G. Sutton, Psy.D., issued a report to the trial
court following an evaluation of Hudkins. Dr. Sutton's report opined that Hudkins' treatment
had been successful and that Hudkins was competent to stand trial as he was capable of
understanding the nature and objective of the proceedings against him and was capable of
assisting in his own defense. The trial court held a competency hearing on January 20,
2021, at which time the court found Hudkins competent to stand trial. On that date, the
court ordered Hudkins released from treatment at SBH and placed him on electronically
monitored house arrest. An entry journalizing the court's competency finding was filed on
January 25, 2021.
{¶5} Hudkins subsequently filed a waiver of his speedy trial rights and entered a
plea of not guilty by reason of insanity. A jury trial was set for July 12, 2021. However, on
June 21, 2021, defense counsel filed a renewed motion for a competency and sanity
evaluation, requesting the court order an evaluation of Hudkins' current mental condition.
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Within his motion, defense counsel noted that his "recent communication" with Hudkins
caused him concern for Hudkins' competency as the communications were "similar to
th[ose] prior to the initial Competency Evaluation." Defense counsel indicated he had
contacted Dr. Dreyer for advice and she recommended a second competency evaluation
be conducted to determine whether Hudkins had returned to a state of incompetency. On
June 30, 2021, the trial court ordered the second competency evaluation.
{¶6} Dr. Dreyer conducted the second evaluation of Hudkins' competency on July
2, 2021. In a report dated July 6, 2021, Dr. Dreyer opined that Hudkins was incompetent
as he was not capable of understanding the nature and objective of the proceedings against
him or of assisting counsel in his defense due to psychiatric instability. Dr. Dreyer had
concerns about Hudkins' ability to be restored to competency within the timeframe allowed
under R.C. 2945.38. In her report, Dr. Dreyer stated that
[d]ue to prior competency restoration efforts related to the offenses charged, it is not clear how much time is now allowed by law to restore the defendant to a competent state. If the defendant has at least six months available for restoration, it is my opinion that the defendant can be restored to a competent state within the time allowed by law, with a proper course of treatment. In this scenario, it is my opinion that the least restrictive setting for competency restoration is SBH. However, if the Court determines the defendant has less than the six months outlined in the statute available for restoration, it is my opinion that the defendant cannot be restored to a competent state within the time allowed by law, even with a proper course of treatment.
{¶7} Both the state and defense counsel filed memoranda with the trial court
addressing the court's ability to order additional treatment to restore Hudkins to
competency. Defense counsel maintained that R.C. 2945.38(C) limited the duration of
treatment that the court could order to restore Hudkins to competency to a total of six
months and that the time period for treatment did not begin anew merely because Hudkins
had a regained competency for a period of time before once again becoming incompetent.
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Relying on Hudkins prior commitment to SBH for treatment, defense counsel claimed R.C.
2945.38 only authorized the court to order treatment for the amount of time left under the
original six months of treatment, which defense counsel noted was far less than six months
given Hudkins' commitment at SBH from August 13, 2020 until January 20, 2021. The
state, however, argued that the trial court had the ability to order a new period of restorative
treatment for up to six months. Specifically, the state argued that "if there is an interim
period in which the defendant is found competent, and the general course of the case was
that [Hudkins] was competent, a second incompetent ruling would 'restart' the restoration
period." Therefore, in the state's view, Hudkins' prior commitment at SBH for restorative
treatment in no way limited the amount of time Hudkins could be treated following the court's
second incompetency finding.
{¶8} A competency hearing was held by trial court on July 19, 2021, at which time
the parties stipulated to the admissibility of Dr. Dreyer's July 6, 2021 report. The trial court
found Hudkins incompetent to stand trial and ordered Hudkins to engage in treatment at
SBH to restore his competency. In ordering Hudkins to return to SBH for treatment, the trial
court specifically found that "upon the second finding of incompetency, where there had
been a period of competency for [Hudkins], an entire new restoration period shall
commence." An entry journalizing the court's competency finding was filed on July 19,
2021.
{¶9} Hudkins appealed from the trial court's July 19, 2021 entry finding him
incompetent, setting forth the following as his sole assignment of error:
{¶10} THE TRIAL COURT ERRED IN ORDERING DEFENDANT TO BE
COMMITTED TO UNDERGO AN ADDITIONAL SIX MONTHS OF COMPETENCY
RESTORATION AS THOSE SIX MONTHS COMBINED WITH HIS PRIOR FIVE MONTHS
WOULD TAKE HIM WELL BEYOND THE MAXIMUM COMMITMENT DURATION
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ALLOWED BY STATUTE.
{¶11} Hudkins argues that because the most serious offense he was indicted for is
a felony of the fourth degree, "a total of six months over the course of the case is the most
[he] can be held in a behavioral health facility for the purpose of competency restoration."
Relying on the language of R.C. 2945.38(C)(2), Hudkins contends that he could only be
returned to treatment for "another 3 weeks and 4 days," that this amount of time was not
sufficient to restore him to competency, and that pursuant to R.C. 2945.38(H), the trial court
should have dismissed the indictment. The state maintains the trial court had the authority
to "restart" the clock on restorative treatment after the second finding of incompetency. In
support of its position, the state relies upon the Fifth Appellate District's decision State v.
Henderson, 5th Dist. Fairfield No. 13-CA-61, 2014-Ohio-2991.
{¶12} We begin by examining the language of R.C. 2945.38, the statute that applies
after the issue of a defendant's competency to stand trial has been raised and the court
has conducted a competency hearing in accordance with R.C. 2945.37. R.C.
2945.38(B)(1)(a) provides that where a defendant is found incompetent to stand trial and
"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."2 However, pursuant to R.C. 2945.38(C),
[n]o 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:
(a) Aggravated murder, murder, or an offense of violence for which a sentence of death or life imprisonment may be
2. R.C. 2945.38 was amended by 2021 Am.Sub.S.B. No. 2, which became effective on August 3, 2021. The proceedings at issue in the present case are governed by the prior version of R.C. 2945.38.
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imposed;
(b) An offense of violence that is a felony of the first or second degree;
(c) A conspiracy to commit, an attempt to commit, or complicity in the commission of an offense described in division (C)(1)(a) or (b) of this section if the conspiracy, attempt, or complicity is a felony of the first or second degree.
(2) Six months, if the most serious offense with which the defendant is charged is a felony other than a felony described in division (C)(1) of this section;
(3) Sixty days, if the most serious offense with which the defendant is charged is a misdemeanor of the first or second degree;
(4) Thirty days, if the most serious offense with which the defendant is charged is a misdemeanor of the third or fourth degree, a minor misdemeanor, or an unclassified misdemeanor.
As the most serious offense Hudkins faced was menacing by stalking, a felony of the fourth
degree, Hudkins could only be required to undergo treatment for up to six months. See
R.C. 2945.38(C)(2).
{¶13} When a defendant is ordered to undergo treatment, the person who
supervises the treatment is ordered to file with the trial court a written report at certain
intervals, including "whenever the person believes the defendant is capable of
understanding the nature and objective of the proceedings against the defendant and
assisting in the defendant's defense" and "[f]or a felony offense, fourteen days before
expiration of the maximum time for treatment as specified in division (C) of the section and
fourteen days before the expiration of the maximum time for continuing evaluation and
treatment as specified in division (B)(1)(a) of this section." R.C. 2945.38(F)(1) and (2).
{¶14} With respect to the report that is filed,
[i]f, in the examiner's opinion, the defendant remains incapable of understanding the nature and objective of the proceedings
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against the defendant and of assisting in the defendant's defense and there is a substantial probability that the defendant will become capable of understanding the nature and objective of the proceedings against the defendant and of assisting in the defendant's defense if the defendant is provided with a course of treatment, if in the examiner's opinion the defendant remains mentally ill or continues to have an intellectual disability, and if the maximum time for treatment as specified in division (C) of this section has not expired, the report also shall contain the examiner's recommendation as to the least restrictive placement or commitment alternative that is consistent with the defendant's treatment needs for restoration to competency and with the safety of the community.
(Emphasis added.) R.C. 2945.38(G).
{¶15} R.C. 2945.38(H) provides guidance on what a court should do if a defendant
has been committed for restorative treatment and the court is subsequently advised by a
treating physician or an examiner retained by the treating facility that there is not a
substantial probability that the defendant will become competent or the expiration of the
maximum time for treatment as specified in division (C) of the statute has expired. Division
(H) of the statute provides, in relevant part, as follows:
(4) If the court finds that the defendant is incompetent to stand trial, if the most serious offense with which the defendant is charged is a misdemeanor or a felony other than a felony listed in division (C)(1) of this section, and if 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, or if the maximum time for treatment relative to that offense as specified in division (C) of this section has expired, the court shall dismiss the indictment, information, or complaint against the defendant.
(Emphasis added.) If the court orders a dismissal because the maximum time for treatment
has expired, the dismissal "is not a bar to further prosecution based on the same conduct."
R.C. 2945.38(H)(4). The court must then discharge the defendant "unless the court or
prosecutor files an affidavit in probate court for civil commitment pursuant to Chapter 5122.
or 5123. of the Revised Code." Id.
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{¶16} The parties have asked this court to determine whether, as a matter of law,
R.C. 2945.38 permits a trial court to order a defendant to undergo an additional period of
treatment to restore the defendant to competency when the defendant has already
undergone treatment and been restored to competency for a period of time before falling
incompetent once again.
{¶17} The interpretation of a statute is a question of law that we review de novo.
State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 9. The court's main objective in
applying a statute is to "determine and give effect to the legislative intent of the General
Assembly as expressed in the language it enacted." State v. Parker, 157 Ohio St.3d 460,
2019-Ohio-3848, ¶ 21. "If the language of the statute is plain and unambiguous and
conveys a clear and definite meaning, then there is no need for this court to resort to the
rules of statutory interpretation." Id., citing State v. Kreischer, 109 Ohio St.3d 391, 2006-
Ohio-2706, ¶ 12. "When there is no ambiguity on the face of the statute, it must simply be
applied as written." State v. Jeffries, 160 Ohio St.3d 300, 2020-Ohio-1539, ¶ 15.
{¶18} Additionally, in examining a statute, a court must "read words in a statute in
the context of the whole statute." State v. Bryant, 160 Ohio St.3d 113, 2020-Ohio-1041, ¶
17, citing State v. Williams, 79 Ohio St.3d 459, 462 (1997). "Our role is to evaluate the
statute as a whole and to interpret it in a manner that will give effect to every word and
clause, avoiding a construction that will render a provision meaningless or inoperative."
State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of Commrs., 152 Ohio St.3d 393,
2017-Ohio-8348, ¶ 14.
{¶19} We find no ambiguity in the language of R.C. 2945.38(C). The statute
specifically provides that "[n]o defendant shall be required to undergo treatment, including
any continuing evaluation and treatment, under division (B)(1) of the section for longer than
* * * [s]ix months, if the most serious offense with which the defendant is charged is a felony
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other than a felony described in division (C)(1) of this section." (Emphasis added.) R.C.
2945.38(C)(2). The language of R.C. 2945.38(C) clearly demonstrates the legislature
contemplated "continuing evaluation and treatment" could occur after an initial
incompetency finding and an order of treatment. The legislature repeatedly stressed,
however, that the treatment could not extend beyond the "maximum time for treatment as
specified in division (C)" of the statute. See R.C. 2945.38(G) and (H). If the maximum time
for treatment to restore the defendant to competency was already expired, or if there was
not a substantial probability that the defendant would become competent to stand trial
within the time frame for treatment set forth in division (C) of the statute, the legislature
indicated the indictment was to be dismissed and the defendant discharged, unless the
court or prosecutor sought a civil commitment of the defendant under Chapter 5122 or 5123
of the Revised Code. R.C. 2945.38(H)(4).
{¶20} Nothing in the express language of R.C. 2945.38 indicates a legislative intent
to "restart" the restorative-treatment clock if there is a time period wherein the defendant
became competent before once again becoming incompetent. The state has not identified
any provision in the statute for its argument that the clock restarts and that Hudkins was
subject to a new six-month period of restorative treatment. Rather, the state relies solely
on the Fifth District's decision in State v. Henderson, 2014-Ohio-2991.
{¶21} The circumstances in Henderson presented a "very unusual fact pattern" that
involved competency determinations under one criminal case, reindictment of the same
first-degree offenses of violence under a second case number, efforts to extend the trial
court's jurisdiction under R.C. 2945.39, and unchallenged factual and legal findings made
by the trial court regarding the effect that the dismissal of the first indictment and the
reindictment had on the statutory time limitations and conditions precedent of R.C.
2945.38(C) and 2945.39(A)(2). Henderson at ¶ 18-19. In Henderson, the defendant was
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charged in January 2011 with two counts of rape, first-degree felony offenses of violence.
The defendant's competency was raised and, on April 29, 2011, following a hearing, the
trial court found the defendant incompetent to stand trial and ordered him to undergo
restorative treatment at a behavioral healthcare facility. Id. at ¶ 2. On February 8, 2012,
the trial court held a subsequent hearing on competency. By entry filed February 11, 2012,
the trial court found the defendant competent to stand trial. Id. at ¶ 3.
{¶22} Subsequently, on July 20, 2012 and September 10, 2012, competency
hearings were again held. On September 25, 2012, by agreed entry, the defendant was
again found to be incompetent to stand trial and the trial court ordered restorative treatment.
Id. at ¶ 4.
{¶23} On November 30, 2012, the defendant was reindicted under a new case
number on the same two rape counts. Id. at ¶ 5. The state dismissed the first indictment
on December 18, 2012. Id. The defendant entered a plea of not guilty by reason of insanity
on January 23, 2013. Id. The defendant subsequently filed a motion to dismiss on speedy
trial grounds and a motion to dismiss for violating the one-year limitation for restoration to
competency authorized by R.C. 2945.38(C). Id. at ¶ 6. On March 22, 2013, after the
defendant filed his motions to dismiss, the state filed a motion with the trial court asking it
to retain jurisdiction pursuant to R.C. 2945.39. Id. In an entry, the trial court determined
the maximum period for restoration to competency had expired on January 12, 2013 and
held a hearing to determine its continuing jurisdiction. Id. at ¶ 7-8. The court subsequently
found it had continuing jurisdiction and committed the defendant to a behavioral healthcare
facility for additional evaluation. Id. at ¶ 10. The court denied both of the defendant's
motions to dismiss. Id. at ¶ 9.
{¶24} The defendant appealed, arguing the trial court erred in continuing jurisdiction
under R.C. 2945.39(A)(2) as the statute was unconstitutional and violated his due process
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rights, the statutory conditions precedent for continuing jurisdiction had not been met, and
the court's decision was not supported by clear and convincing evidence. Id. at ¶ 17. The
Fifth District ultimately found no merit to the defendant's arguments. In rejecting the
defendant's claims, the court noted that "[t]here is no challenge to the trial court's
conclusion that the dismissal of the first indictment and re-indictment did not affect the
statutory time limitations and conditions precedent of R.C. 2945.38(C) and 2945.39(A)(2)."
Id. at ¶ 18. The court noted that for 217 days, from February 21, 2012 in the first case, until
September 24, 2012 in the second case, the defendant had been competent to stand trial
and was not in treatment at a behavioral healthcare facility. Id. The Fifth District analyzed
whether the "February 21, 2012 determination of competency turn[ed] off the one year time
clock for 217 days." Id. at ¶ 19. The court answered that question in the affirmative, stating:
The docket of the first indictment demonstrates that from February 21, 2012 to September 25, 2012, the general course of the case was that [the defendant] was competent, and numerous trial dates and suppression hearings were scheduled. Therefore, we conclude with the September 25, 2012 agreed entry finding [the defendant] 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.
(Emphasis added). Id. at ¶ 20. The court then proceeded to find the statutory requirements
for continuing jurisdiction under R.C. 2945.39(A)(2) were met and supported by clear and
convincing evidence. Id. at ¶ 21-30.
{¶25} The circumstances presented in Henderson are significantly different than
those presented in the present case. In Henderson, the defendant was charged with an
offense of violence that was a felony of the first degree, which permitted the trial court to
order the defendant to undergo treatment for one year. See R.C. 2945.38(C)(1)(b). After
the defendant was found incompetent a second time and ordered to undergo restorative
treatment, the state dismissed the original indictment and indicted the defendant on the
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same charges under a new case number. Additionally, the defendant in Henderson was
subject to continuing jurisdiction under R.C. 2945.39 after the expiration of the maximum
time for treatment to restore the defendant to competency. In contrast, the most serious
offense for which Hudkins was charged was a felony of the fourth degree. Pursuant to R.C.
2945.38(C)(2), Hudkins could only be ordered to undergo treatment for six months.
Continuing jurisdiction under R.C. 2945.39 was not an option in Hudkins case, as that
statute is applicable only when a defendant has been charged with an offense as described
in division (C)(1) of R.C. 2945.38.3 See State v. Baird, 8th Dist. Cuyahoga No. 108515,
2020-Ohio-2717, ¶ 10 (noting that a trial court could not make the findings required by R.C.
2945.39 to continue jurisdiction over an incompetent person where the defendant was
charged with a fourth-degree felony since R.C. 2945.39 was inapplicable to the felony
3. R.C. 2945.39(A) specifically provides as follows:
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:
(1) The court or the prosecutor may file an affidavit in probate court for civil commitment of the defendant in the manner provided in Chapter 5122. or 5123. of the Revised Code. If the court or prosecutor files an affidavit for civil commitment, the court may detain the defendant for ten days pending civil commitment. If the probate court commits the defendant subsequent to the court's or prosecutor's filing of an affidavit for civil commitment, the chief clinical officer of the entity, hospital, or facility, the managing officer of the institution, the director of the program, or the person to which the defendant is committed or admitted shall send to the prosecutor the notices described in divisions (H)(4)(a)(i) to (iii) of section 2945.38 of the Revised Code within the periods of time and under the circumstances specified in those divisions.
(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 court order or a person with an intellectual disability subject to institutionalization by court order.
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charge at issue). The state did not seek to dismiss the charges against Hudkins and have
him reindicted for menacing by stalking and violating a protection order. Here, unlike in
Henderson, all of the trial court's incompetency findings and orders for Hudkins to undergo
restorative treatments occurred under the same case number.
{¶26} Given the factual distinctions between the proceedings in Henderson and
those in the case before us, we find the state's reliance on Henderson misplaced.
Additionally, we are unpersuaded by the rationale expressed in Henderson. Although the
Fifth District found that "an entire new restoration period commenced" following the trial
court's second finding of incompetency after a period of competency, the Fifth District failed
to identify the statutory authority for its holding.
{¶27} Accordingly, we find that the unambiguous language of R.C. 2945.38(C)(2)
limits the maximum amount of time that a criminal defendant facing a felony offense other
than that described in division (C)(1) of the statute can be ordered to undergo treatment to
restore him to competency is a maximum of six months, and that a period of competency
in between incompetency findings does not restart the treatment clock. As Hudkins had
already undergone a period of restorative treatment from August 13, 2020 until January 20,
2021, there was less than a month of additional restorative treatment that the trial court
could order before hitting the six-month maximum allowed by law. Dr. Dreyer's July 6, 2020
report, which was the only evidence offered at the July 19, 2021 competency hearing,
indicated that Hudkins was incompetent and that there was not a substantial probability
that Hudkins could be restored to competency with less than six months of treatment, even
with a proper course of treatment. As such, the trial court should have dismissed the
indictment and discharged Hudkins or, alternatively, filed an affidavit in probate court for
civil commitment pursuant to R.C. Chapter 5122 or 5123. R.C. 2945.38(H)(4).
{¶28} We therefore sustain Hudkins sole assignment of error and reverse the
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judgment of the trial court to the extent that the court found that a second finding of
incompetency, after a period of competency, started an entirely new six-month restoration
period for treatment under R.C. 2945.38(C)(2). The matter is remanded to the trial court
with instructions to apply R.C. 2945.38(H)(4) by either dismissing the indictment and
discharging Hudkins or, alternatively, seeking civil commitment of Hudkins in accordance
with R.C. Chapter 5122 or 5123. In the event the trial court dismisses the indictment and
discharges Hudkins, the dismissal in no way serves as a bar to further prosecution on the
same conduct.
{¶29} Judgment reversed and the matter remanded for further proceedings.
PIPER, P.J., and S. POWELL, J., concur.
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