State v. Stutler

2021 Ohio 481

• Court: Ohio Court of Appeals
• Decided: February 22, 2021
• Docket: 2020 CA 00022
• Status: Published

Opinion

[Cite as State v. Stutler, 2021-Ohio-481.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JEREMY STUTLER : Case No. 2020 CA 00022 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2011CR1169

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 22, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KATHLEEN O. TATARSKY MICHAEL A. PARTLOW 110 Central Plaza South 112 South Water Street Suite 510 Suite C Canton, OH 44702-1413 Kent, OH 44240 Stark County, Case No. 2020 CA 00022 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Jeremy Stutler, appeals the December 26, 2019

judgment entry of the Court of Common Pleas of Stark County, Ohio, denying him

movement to Level IV for community privileges. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2011, appellant was charged with murder, tampering with evidence, and

gross abuse of a corpse, and found not guilty by reason of insanity. He was committed

to Twin Valley Behavioral Healthcare, a maximum security mental health facility. In

January 2014, appellant was transferred to Northcoast Behavioral Healthcare. He was

granted Level III movement to participate in Level III activities and the less restrictive

Level IV movement for medical treatment.

{¶ 3} On February 2, 2015, Joy Stankowski, M.D., the Chief Clinical Officer of

Northcoast Behavioral Healthcare, requested that appellant be granted Level IV

movement for community trips with staff or case manager supervision. A second

opinion found the request reasonable albeit with numerous conditions. Following a

hearing, the trial court denied the request. This court affirmed the decision. State v.

Stutler, 5th Dist. Stark No. 2015CA00099, 2015-Ohio-5518, appeal not accepted, 145

Ohio St.3d 1470, 2016-Ohio-3028 (Stutler I).

{¶ 4} On January 27, 2017, Dr. Stankowski again requested that appellant be

moved to Level IV for community privileges. The request was accompanied by a

recommendation from a medical doctor. Again, a second opinion found the request

reasonable contingent upon several conditions. Following a hearing, the trial court

denied the request. This court affirmed the decision. State v. Stutler, 5th Dist. Stark Stark County, Case No. 2020 CA 00022 3

No. 2017CA00094, 2018-Ohio-1619, appeal not accepted, 153 Ohio St.3d 1467, 2018-

Ohio-3450 (Stutler II).

{¶ 5} On September 26, 2019, Dr. Stankowski again requested that appellant

be granted movement to Level IV for community privileges. A hearing was held on

December 12, 2019. By judgment entry filed December 26, 2019, the trial court denied

the request.

{¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 1} "THE TRIAL COURT'S DETERMINATION THAT APPELLANT SHOULD

BE DENIED A CHANGE TO LEVEL IV-COMMUNITY PRIVILEGES IS NOT

SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND CONSTITUTES AN

ABUSE OF THE TRIAL COURT'S DISCRETION."

II

{¶ 2} "THE TRIAL COURT HAD NO DISCRETION TO DENY THE LEVEL

CHANGE REQUESTED IN THE ABSENCE OF CLEAR AND CONVINCING

EVIDENCE INDICATING THAT THE LEVEL CHANGE SHOULD NOT BE GRANTED."

I, II

{¶ 3} In his first assignment of error, appellant claims the trial court's decision to

deny the level change is not supported by clear and convincing evidence and therefore

constitutes an abuse of discretion. In his second assignment of error, appellant claims

the trial court had no discretion to deny the level change in the absence of clear and

convincing evidence that it should not be granted. We disagree with both assignments

of error. Stark County, Case No. 2020 CA 00022 4

{¶ 4} R.C. 2945.401 states the following in pertinent part:

(A) A defendant found incompetent to stand trial and committed

pursuant to section 2945.39 of the Revised Code or a person found not

guilty by reason of insanity and committed pursuant to section 2945.40 of

the Revised Code shall remain subject to the jurisdiction of the trial court

pursuant to that commitment, and to the provisions of this section, until the

final termination of the commitment as described in division (J)(1) of this

section.

(D)(1) Except as otherwise provided in division (D)(2) of this

section, when a defendant or person has been committed under section

2945.39 or 2945.40 of the Revised Code, at any time after evaluating the

risks to public safety and the welfare of the defendant or person, the

designee of the department of mental health and addiction services or the

managing officer of the institution or director of the facility or program to

which the defendant or person is committed may recommend a

termination of the defendant's or person's commitment or a change in the

conditions of the defendant's or person's commitment.

(G) In a hearing held pursuant to division (C) or (D)(1) of this

section, the prosecutor has the burden of proof as follows:

(2) For a recommendation for a change in the conditions of the

commitment to a less restrictive status, to show by clear and convincing

evidence that the proposed change represents a threat to public safety or

a threat to the safety of any person. Stark County, Case No. 2020 CA 00022 5

(H) In a hearing held pursuant to division (C) or (D)(1) or (2) of this

section, the prosecutor shall represent the state or the public interest.

(I) At the conclusion of a hearing conducted under division (D)(1) of

this section regarding a recommendation from the designee of the

department of mental health and addiction services, managing officer of

the institution, or director of a facility or program, the trial court may

approve, disapprove, or modify the recommendation and shall enter an

order accordingly.

{¶ 5} Clear and convincing evidence is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

{¶ 6} We have reviewed two previous denials of similar requests in 2015 and

2017. In affirming the trial court's decisions, we found "a trial court retains discretion to

deny a request for increased privileges even if the evidence in opposition to the

requested modification presented by the state does not rise to the level of clear and

convincing evidence." Stutler I, at ¶ 13. "We see no reason to alter our finding in this

case and continue to hold that the trial court retains its discretion even if the prosecutor

opposes the change and does not provide clear and convincing evidence of a threat to

public safety or a person." Stutler II, at ¶ 13.

{¶ 7} Appellant makes the same arguments about the standards of review as he

made in Stutler II. We hereby incorporate in this case the lengthy and well-reasoned Stark County, Case No. 2020 CA 00022 6

analysis as set forth in Stutler II at ¶ 14-26, and will review the evidence presented

under those standards.

{¶ 8} Three individuals testified during the hearing: psychologist Michael R.

Kerschner, Ph.D., psychiatrist Jagdish Mude, M.D., and appellant.

{¶ 9} Dr. Kerschner sees appellant two times a week for group therapy and one

time per week for individual therapy which began about eight months prior to the

hearing. T. at 14, 42-43. He is not on appellant's treatment team, but serves as a

psychologist on the treatment team "when important issues come up." T. at 23. He

does not participate in treatment team meetings. T. at 43-44. He has never known

appellant to participate in violence, even when confronted with violent conduct by

others. T. at 18. He explained how he reviewed appellant's file and the trial court's

prior decisions, and crafted a very specific plan for the level change, taking into account

the trial court's concerns. T. at 15-17. The plan was to fit appellant with a GPS device

during outings, and he would be accompanied by himself and another mental health

professional, as well as a plainclothes police officer. T. at 26, 28, 31. However, he

admitted the addition of the police officer was not guaranteed every time. T. at 31. He

opined, within a reasonable degree of medical certainty, that the plan would be safe for

both appellant and the general public as appellant's "risk assessment" was low. T. at

34-36. He stated appellant was in "remission" for his bipolar disorder, understood his

mental condition with "great clarity and insight," and has expressed "profound" remorse.

T. at 17, 20-21. On cross-examination, Dr. Kerschner admitted appellant suffers from

bipolar disorder with psychotic features which could reemerge. T. at 40-41. Between

staying at the facility versus being out in the community with supervision, staying at the

facility would be "the more-structured situation." T. at 41. Stark County, Case No. 2020 CA 00022 7

{¶ 10} Dr. Mude started caring for appellant in July 2018. T. at 48. He sees

appellant about once a month for 25-30 minutes. T. at 55. Appellant's diagnosis is

bipolar disorder with psychotic features. T. at 60. Dr. Mude stated appellant's

medications are "working excellent on him." T. at 48. Dr. Mude was part of the group

that developed the Level IV community plan and was in support of the plan. T. at 49.

He opined that appellant "has the capacity to keep anger in control, and he is working

almost for five years without any problem." T. at 63. He admitted that future violence

could take place if appellant stopped taking his medication. T. at 63-64. He explained

that one time on a medical trip for a dental issue, appellant had the opportunity to run

away, but chose not to. T. at 50. "The staff was not there for almost 45 minutes and he

was alone there. So if he wanted to, he could have run away but he never took that

chance." T. at 50-51.

{¶ 11} Appellant stated since 2014, he went on at least twelve Level IV outings

for medical care. T. at 69. In August 2019, he went to a dental appointment for oral

surgery. Id. He was accompanied by two staff members. Following the surgery, he

was returned to the lobby and the staff members were not present. T. at 70. An

employee with the surgeon's office remained alone with him until a staff member

returned. T. at 70-71. He was unattended by staff personnel at the surgeon's office for

about 45 minutes. T. at 50. He was not wearing any physical restraints and did not

attempt to escape. T. at 71. He understands his bipolar disorder is a lifetime disorder

that has to be managed and "deviating from that plan could cause a reoccurrence of, of

my condition." T. at 74-75. He testified to feeling remorse. T. at 82.

{¶ 12} We note the record is devoid of any expert reports. Stark County, Case No. 2020 CA 00022 8

{¶ 13} In its December 26, 2019 judgment entry denying appellant's movement to

Level IV for community privileges, the trial court outlined appellant's treatment from the

beginning (2012). In 2014, the same trial court approved appellant's transfer from

maximum security (Twin Valley) to Northcoast Behavioral Healthcare. In June 2014,

the trial court approved Level III movement to participate in Level III activities and the

less restrictive Level IV movement for medical treatment. The trial court also discussed

the 2015 and 2017 hearings and decisions.

{¶ 14} The trial court stated one of the major issues of concern was public safety,

and noted he was disturbed about the handling of the Level IV medical outing for the

oral surgery: "[e]ven more worrisome is the previous gross negligence of the Northcoast

staff on a medical privilege visit." The trial court questioned Dr. Kerschner's working

relationship with appellant as the psychologist was not a member of appellant's

treatment team and Dr. Kerschner acknowledged the team would know the patient the

best. The trial court was troubled with the fact that Dr. Mude never reviewed any

reports from 2015 or 2017 regarding appellant's history. The trial court stated the

following:

As the Court has previously pronounced, one of its main roles is to

protect the public. This Court works within a very small margin of error; if

the trial court allows these trips and Defendant were to cause serious

injury to another, the Court, not the psychiatrist, would bear the legal,

moral and ethical responsibility. The crimes in this particular case were

violent, lethal and gruesome. These were not crimes that were committed Stark County, Case No. 2020 CA 00022 9

because of a lapse of judgment, but claimed to be committed due to

"delusional visions by demons."

{¶ 15} The trial court stated while it respected the opinion of the two

professionals, it simply disagreed with their ultimate determination. The trial court

concluded the professionals did not establish a clear understanding of appellant's

complete treatment plan.

{¶ 16} As we have previously stated, the trial court has the discretion to

"approve, disapprove, or modify the recommendation." R.C. 2945.401(I). Given the

evidence presented, we cannot say the trial court abused its discretion in disapproving

the request for movement to Level IV for community privileges. Much of Dr. Kerschner's

testimony centered on the secure nature of the Level IV community plan, although he

could not guarantee all the recommendations of the plan. Given the security breach of

the Level IV medical plan, we find it is reasonable for the trial court to be concerned

about public safety at this point in time.

{¶ 17} Upon review, we do not find the trial court's decision was "unreasonable,

arbitrary or unconscionable."

{¶ 18} Assignments of Error I and II are denied. Stark County, Case No. 2020 CA 00022 10

{¶ 19} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Baldwin, P.J. and

Wise, John, J. concur.

EEW/db