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(136th General Assembly)
(Amended
Senate Bill Number 295)
AN ACT
To amend sections 2945.38, 2945.39,
and 2945.401 of the Revised Code relative to the timeline for
restoration of competency in criminal cases and to declare an
emergency.
Be
it enacted by the General Assembly of the State of Ohio:
Section
1.
That
sections 2945.38, 2945.39, and 2945.401 of the Revised Code be
amended to read as follows:
Sec.
2945.38.
(A)
If the issue of a defendant's competence to stand trial is raised and
if the court, upon conducting the hearing provided for in section
2945.37 of the Revised Code, finds that the defendant is competent to
stand trial, the defendant shall be proceeded against as provided by
law. If the court finds the defendant competent to stand trial and
the defendant is receiving psychotropic drugs or other medication,
the court may authorize the continued administration of the drugs or
medication or other appropriate treatment in order to maintain the
defendant's competence to stand trial, unless the defendant's
attending physician advises the court against continuation of the
drugs, other medication, or treatment.
(B)(1)(a)(i)
If the defendant has been charged with a felony offense or a
misdemeanor offense of violence for which the prosecutor has not
recommended the procedures under division (B)(1)(a)(vi) of this
section and if, after taking into consideration all relevant reports,
information, and other evidence, the court finds that the defendant
is incompetent to stand trial and that there is a substantial
probability that the defendant will become competent to stand trial
within
one
year
the
time specified in division (C) of this section
if
the defendant is provided with a course of treatment, the court shall
order the defendant to undergo treatment.
(ii)
If the defendant has been charged with a felony offense and if, after
taking into consideration all relevant reports, information, and
other evidence, the court finds that the defendant is incompetent to
stand trial, but the court is unable at that time to determine
whether there is a substantial probability that the defendant will
become competent to stand trial within
one
year
the
time specified in division (C) of this section
if
the defendant is provided with a course of treatment, the court shall
order continuing evaluation and treatment of the defendant for a
period not to exceed four months to determine whether there is a
substantial probability that the defendant will become competent to
stand trial within
one
year
the
time specified in division (C) of this section
if
the defendant is provided with a course of treatment.
(iii)
If the defendant has not been charged with a felony offense but has
been charged with a misdemeanor offense of violence and if, after
taking into consideration all relevant reports, information, and
other evidence, the court finds that the defendant is incompetent to
stand trial, but the court is unable at that time to determine
whether there is a substantial probability that the defendant will
become competent to stand trial within the time frame permitted under
division
(C)(1)
(C)(4)
or (5)
of this section, the court may order continuing evaluation and
treatment of the defendant for a period not to exceed the maximum
period permitted under that division.
(iv)
If the defendant has not been charged with a felony offense or a
misdemeanor offense of violence, but has been charged with a
misdemeanor offense that is not a misdemeanor offense of violence and
if, after taking into consideration all relevant reports,
information, and other evidence, the court finds that the defendant
is incompetent to stand trial, but the court is unable at that time
to determine whether there is a substantial probability that the
defendant will become competent to stand trial within the time frame
permitted under division
(C)(1)
(C)(4)
or (5)
of this section, the court shall dismiss the charges and follow the
process outlined in division (B)(1)(a)(v)(I) of this section.
(v)
If the defendant has not been charged with a felony offense or a
misdemeanor offense of violence, or if the defendant has been charged
with a misdemeanor offense of violence and the prosecutor has
recommended the procedures under division (B)(1)(a)(vi) of this
section, and if, after taking into consideration all relevant
reports, information, and other evidence, the trial court finds that
the defendant is incompetent to stand trial, the trial court shall do
one of the following:
(I)
Dismiss the charges pending against the defendant. A dismissal under
this division is not a bar to further prosecution based on the same
conduct. Upon dismissal of the charges, the trial court shall
discharge the defendant unless the court or prosecutor, after
consideration of the requirements of section 5122.11 of the Revised
Code, files an affidavit in probate court alleging that the defendant
is a mentally ill person subject to court order or a person with an
intellectual disability subject to institutionalization by court
order. If an affidavit is filed in probate court, the trial court may
detain the defendant for ten days pending a hearing in the probate
court and shall send to the probate court copies of all written
reports of the defendant's mental condition that were prepared
pursuant to section 2945.371 of the Revised Code. The trial court or
prosecutor shall specify in the appropriate space on the affidavit
that the defendant is a person described in this subdivision.
(II)
Order the defendant to undergo outpatient competency restoration
treatment at a facility operated or certified by the department of
mental health and addiction services as being qualified to treat
mental illness, at a public or community mental health facility, at a
jail that employs or contracts with an individual or entity listed in
division (B)(1)(b)(i) of this section to provide treatment or
continuing evaluation and treatment at a jail, or in the care of a
psychiatrist or other mental health professional. If a defendant who
has been released on bail or recognizance refuses to comply with
court-ordered outpatient treatment under this division, the court may
dismiss the charges pending against the defendant and proceed under
division (B)(1)(a)(v)(I) of this section or may amend the conditions
of bail or recognizance and order the sheriff to take the defendant
into custody and deliver the defendant to a center or facility
operated or certified by the department of mental health and
addiction services for treatment.
(vi)
If the defendant has not been charged with a felony offense but has
been charged with a misdemeanor offense of violence and after taking
into consideration all relevant reports, information, and other
evidence, the court finds that the defendant is incompetent to stand
trial, the prosecutor in the case may recommend that the court follow
the procedures prescribed in division (B)(1)(a)(v) of this section.
If the prosecutor does not make such a recommendation, the court
shall follow the procedures in division (B)(1)(a)(i) of this section.
(b)(i)
The court order for the defendant to undergo treatment or continuing
evaluation and treatment under division (B)(1)(a) of this section
shall specify that the defendant, if determined to require mental
health treatment or continuing evaluation and treatment, shall be
committed to one of the following:
(I)
The department of mental health and addiction services for treatment
or continuing evaluation and treatment at a hospital, facility, or
agency, as determined to be clinically appropriate by the department;
(II)
A facility certified by the department of mental health and addiction
services as being qualified to treat mental illness;
(III)
A public or community mental health facility;
(IV)
A jail that employs or contracts with an entity or individual listed
in division (B)(1)(b)(i) of this section to provide treatment or
continuing evaluation and treatment at a jail;
(V)
A psychiatrist or another mental health professional for treatment or
continuing evaluation and treatment.
(ii)
Prior to placing the defendant, the department of mental health and
addiction services shall obtain court approval for that placement
following a hearing. The court order for the defendant to undergo
treatment or continuing evaluation and treatment under division
(B)(1)(a) of this section shall specify that the defendant, if
determined to require treatment or continuing evaluation and
treatment for an intellectual disability, shall receive treatment or
continuing evaluation and treatment at an institution or facility
operated by the department of developmental disabilities, at a
facility certified by the department of developmental disabilities as
being qualified to treat intellectual disabilities, at a public or
private intellectual disabilities facility, or by a psychiatrist or
another intellectual disabilities professional. In any case, the
order may restrict the defendant's freedom of movement as the court
considers necessary. The prosecutor in the defendant's case shall
send to the chief clinical officer of the hospital, facility, or
agency where the defendant is placed by the department of mental
health and addiction services, or to the managing officer or director
of the institution, facility, or jail, or the person to which the
defendant is committed, copies of relevant police reports and other
background information that pertains to the defendant and is
available to the prosecutor unless the prosecutor determines that the
release of any of the information in the police reports or any of the
other background information to unauthorized persons would interfere
with the effective prosecution of any person or would create a
substantial risk of harm to any person.
(iii)
In determining the place of commitment, the court shall consider the
extent to which the person is a danger to the person and to others,
the need for security, the availability of housing and supportive
services, including outpatient mental health services in the
community, and the type of crime involved and shall order the least
restrictive alternative available that is consistent with public
safety and treatment goals. In weighing these factors, the court
shall give preference to protecting public safety and the
availability of housing and supportive services.
(c)
If the defendant is found incompetent to stand trial, if the chief
clinical officer of the hospital, facility, or agency where the
defendant is placed, or the managing officer or director of the
institution, facility, or jail, or the person to which the defendant
is committed for treatment or continuing evaluation and treatment
under division (B)(1)(b) of this section determines that medication
is necessary to restore the defendant's competency to stand trial,
and if the defendant lacks the capacity to give informed consent or
refuses medication, the chief clinical officer of the hospital,
facility, or agency where the defendant is placed, or the managing
officer or director of the institution, facility, or jail, or the
person to which the defendant is committed for treatment or
continuing evaluation and treatment may petition the court for
authorization for the involuntary administration of medication. The
court shall hold a hearing on the petition within five days of the
filing of the petition if the petition was filed in a municipal court
or a county court regarding an incompetent defendant charged with a
misdemeanor or within ten days of the filing of the petition if the
petition was filed in a court of common pleas regarding an
incompetent defendant charged with a felony offense. Following the
hearing, the court may authorize the involuntary administration of
medication or may dismiss the petition.
(2)
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
the
time specified in division (C) of this section
,
the court shall order the discharge of the defendant, unless upon
motion of the prosecutor or on its own motion, the court either seeks
to retain jurisdiction over the defendant pursuant to section 2945.39
of the Revised Code or files an affidavit in the probate court for
the civil commitment of the defendant pursuant to Chapter 5122. or
5123. of the Revised Code alleging that the defendant is a person
with a mental illness subject to court order or a person with an
intellectual disability subject to institutionalization by court
order. If an affidavit is filed in the probate court, the trial court
shall send to the probate court copies of all written reports of the
defendant's mental condition that were prepared pursuant to section
2945.371 of the Revised Code.
The
trial 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 civil
proceedings governed by Chapter 5122. or 5123. of the Revised Code.
(C)
No 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
Three
years
,
if the most serious offense with which the defendant is charged is
one of the following offenses:
(a)
Aggravated murder
,
or
murder
,
or an
;
(b)
An
offense
of violence for which a sentence of death or life imprisonment may be
imposed;
(c)
Complicity in committing an offense described in division (C)(1)(a)
or (C)(1)(b) of this section.
(b)
(2)
One year, if the most serious offense with which the defendant is
charged is one of the following offenses:
(a)
An offense of violence that is a felony of the first or second
degree;
(c)
(b)
A conspiracy to commit
,
or
an attempt to commit
,
or complicity in the commission of
an offense described in division
(C)(1)(a)
(C)(1)
or
(b)
(2)
of
this section if the conspiracy
,
or
attempt
,
or complicity
is a felony of the first or second degree
;
(c)
Complicity in committing an offense described in division (C)(2) of
this section if the complicity is a felony of the first or second
degree
.
(2)
(3)
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)
or
(2)
of this section;
(3)
(4)
Sixty days, if the most serious offense with which the defendant is
charged is a misdemeanor of the first or second degree;
(4)
(5)
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.
(D)
Any defendant who is committed pursuant to this section shall not
voluntarily admit the defendant or be voluntarily admitted to a
hospital or institution pursuant to section 5122.02, 5122.15,
5123.69, or 5123.76 of the Revised Code.
(E)
Except as otherwise provided in this division, a defendant who is
charged with an offense and is committed by the court under this
section to the department of mental health and addiction services or
is committed to an institution or facility for the treatment of
intellectual disabilities shall not be granted unsupervised
on-grounds movement, supervised off-grounds movement, or nonsecured
status except in accordance with the court order. The court may grant
a defendant supervised off-grounds movement to obtain medical
treatment or specialized habilitation treatment services if the
person who supervises the treatment or the continuing evaluation and
treatment of the defendant ordered under division (B)(1)(a) of this
section informs the court that the treatment or continuing evaluation
and treatment cannot be provided at the hospital or facility where
the defendant is placed by the department of mental health and
addiction services or the institution, facility, or jail to which the
defendant is committed. The chief clinical officer of the hospital or
facility where the defendant is placed by the department of mental
health and addiction services or the managing officer or director of
the institution, facility, or jail to which the defendant is
committed, or a designee of any of those persons, may grant a
defendant movement to a medical facility for an emergency medical
situation with appropriate supervision to ensure the safety of the
defendant, staff, and community during that emergency medical
situation. The chief clinical officer of the hospital or facility
where the defendant is placed by the department of mental health and
addiction services or the managing officer or director of the
institution, facility, or jail to which the defendant is committed
shall notify the court within twenty-four hours of the defendant's
movement to the medical facility for an emergency medical situation
under this division.
(F)
The person who supervises the treatment or continuing evaluation and
treatment of a defendant ordered to undergo treatment or continuing
evaluation and treatment under division (B)(1)(a) of this section
shall file a written report with the court at the following times:
(1)
Whenever the person believes the defendant is capable of
understanding the nature and objective of the proceedings against the
defendant and of assisting in the defendant's defense;
(2)
For a felony offense, fourteen days before expiration of the maximum
time for treatment as specified in division (C) of this 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, and, for a misdemeanor offense, ten days
before the expiration of the maximum time for treatment, as specified
in division (C) of this section;
(3)
At a minimum, after each six months of treatment;
(4)
Whenever the person who supervises the treatment or continuing
evaluation and treatment of a defendant ordered under division
(B)(1)(a) of this section believes that there is not a substantial
probability that the defendant will become capable of understanding
the nature and objective of the proceedings against the defendant or
of assisting in the defendant's defense even if the defendant is
provided with a course of treatment.
(G)
A report under division (F) of this section shall contain the
examiner's findings, the facts in reasonable detail on which the
findings are based, and the examiner's opinion as to the defendant's
capability of understanding the nature and objective of the
proceedings against the defendant and of assisting in the defendant's
defense. If, in the examiner's opinion, the defendant remains
incapable of understanding the nature and objective of the
proceedings 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 continues to have a mental
illness or 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. The court shall
provide copies of the report to the prosecutor and defense counsel.
(H)
If a defendant is committed pursuant to division (B)(1) of this
section, within ten days after the treating physician of the
defendant or the examiner of the defendant who is employed or
retained by the treating facility advises that there is not a
substantial probability that the defendant will become capable of
understanding the nature and objective of the proceedings against the
defendant or of assisting in the defendant's defense even if the
defendant is provided with a course of treatment, within ten days
after the expiration of the maximum time for treatment as specified
in division (C) of this section, within ten days after the expiration
of the maximum time for continuing evaluation and treatment as
specified in division (B)(1)(a) of this section, within thirty days
after a defendant's request for a hearing that is made after six
months of treatment, or within thirty days after being advised by the
treating physician or examiner that the defendant is competent to
stand trial, whichever is the earliest, the court shall conduct
another hearing to determine if the defendant is competent to stand
trial and shall do whichever of the following is applicable:
(1)
If the court finds that the defendant is competent to stand trial,
the defendant shall be proceeded against as provided by law.
(2)
If the court finds that the defendant is incompetent to stand trial,
but that there is a substantial probability that the defendant will
become competent to stand trial if the defendant is provided with a
course of treatment, and the maximum time for treatment as specified
in division (C) of this section has not expired, the court, after
consideration of the examiner's recommendation, shall order that
treatment be continued, may change the facility or location at which
the treatment is to be continued, and shall specify whether the
treatment is to be continued at the same or a different facility or
location.
(3)
If the court finds that the defendant is incompetent to stand trial,
if the defendant is charged with an offense listed in division (C)(1)
or
(2)
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,
further proceedings shall be as provided in sections 2945.39,
2945.401, and 2945.402 of the Revised Code.
(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)
or
(2)
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. A dismissal under this division is not a bar to
further prosecution based on the same conduct. The court shall
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. If an affidavit for civil
commitment is filed, the court may detain the defendant for ten days
pending civil commitment and shall send to the probate court copies
of all written reports of the defendant's mental condition prepared
pursuant to section 2945.371 of the Revised Code.
All
of the following provisions apply to persons charged with a
misdemeanor or a felony other than a felony listed in division (C)(1)
or
(2)
of this section who are committed by the probate court subsequent to
the court's or prosecutor's filing of an affidavit for civil
commitment under authority of this division:
(a)
The chief clinical officer of the entity, hospital, or facility, the
managing officer or director of the institution, facility, or jail,
or the person to which the defendant is committed or admitted shall
do all of the following:
(i)
Notify the prosecutor, in writing, of the discharge of the defendant,
send the notice at least ten days prior to the discharge unless the
discharge is by the probate court, and state in the notice the date
on which the defendant will be discharged;
(ii)
Notify the prosecutor, in writing, when the defendant is absent
without leave or is granted unsupervised, off-grounds movement, and
send this notice promptly after the discovery of the absence without
leave or prior to the granting of the unsupervised, off-grounds
movement, whichever is applicable;
(iii)
Notify the prosecutor, in writing, of the change of the defendant's
commitment or admission to voluntary status, send the notice promptly
upon learning of the change to voluntary status, and state in the
notice the date on which the defendant was committed or admitted on a
voluntary status.
(b)
Upon receiving notice that the defendant will be granted
unsupervised, off-grounds movement, the prosecutor either shall
re-indict the defendant or promptly notify the court that the
prosecutor does not intend to prosecute the charges against the
defendant.
(I)
If a defendant is convicted of a crime and sentenced to a jail, the
defendant's sentence shall be reduced by the total number of days the
defendant is confined for evaluation to determine the defendant's
competence to stand trial or treatment under this section and
sections 2945.37 and 2945.371 of the Revised Code or by the total
number of days the defendant is confined for evaluation to determine
the defendant's mental condition at the time of the offense charged.
(J)
If a defendant is found incompetent to stand trial and the treating
facility or responsible clinician determines that the defendant lacks
capacity to consent to treatment or refuses treatment, including
medication, and no petition is filed under division (B)(1)(c) of this
section, the time period for treatment specified in division (C) of
this section shall be tolled during any period of time the defendant
lacks capacity to consent to treatment or refuses treatment,
including medication.
(K)
If a defendant is found incompetent to stand trial and the treating
facility or responsible clinician determines that the defendant lacks
capacity to consent to treatment or refuses treatment, including
medication, and a petition is filed under division (B)(1)(c) of this
section, the time period for treatment specified in division (C) of
this section shall be tolled during any period of time the petition
is pending.
(L)
For purposes of this section, the chief clinical officer of the
hospital, facility, or agency where the defendant is placed, or the
managing officer or director of the institution, facility, or jail,
or the person to which the defendant is committed for treatment,
shall document the determination that the defendant lacks capacity to
consent to treatment or refuses treatment, including medication, and
shall notify the court within fourteen days of that determination.
(M)
If a defendant who has been found incompetent to stand trial is
subsequently found competent during the course of treatment or
continuing evaluation and treatment and is later again found
incompetent to stand trial, the time period for treatment specified
in division (C) of this section resets, and the court shall treat the
new period of incompetency as a distinct restoration period subject
to the limitations in division (C) of this section.
(N)
The amendments to this section by this act apply retroactively to all
defendants who were found incompetent to stand trial prior to the
effective date of this amendment and whose restoration to competency
is ongoing or whose case remains pending.
Sec.
2945.39.
(A)
If a defendant who is charged with an offense described in division
(C)(1)
or
(2)
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 person with a mental illness subject to court
order or a person with an intellectual disability subject to
institutionalization by court order.
(B)
In making its determination under division (A)(2) of this section as
to whether to retain jurisdiction over the defendant, the court may
consider all relevant evidence, including, but not limited to, any
relevant psychiatric, psychological, or medical testimony or reports,
the acts constituting the offense charged, and any history of the
defendant that is relevant to the defendant's ability to conform to
the law.
(C)
If the court conducts a hearing as described in division (A)(2) of
this section and if the court does not make both findings described
in divisions (A)(2)(a) and (b) of this section by clear and
convincing evidence, the court shall dismiss the indictment,
information, or complaint against the defendant. Upon the dismissal,
the court shall discharge the defendant unless the court or
prosecutor files an affidavit in probate court for civil commitment
of the defendant pursuant to Chapter 5122. or 5123. of the Revised
Code. If the court or prosecutor files an affidavit for civil
commitment, the court may order that the defendant be detained for up
to ten days pending the 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. A dismissal of charges
under this division is not a bar to further criminal proceedings
based on the same conduct.
(D)(1)
If the court conducts a hearing as described in division (A)(2) of
this section and if the court makes the findings described in
divisions (A)(2)(a) and (b) of this section by clear and convincing
evidence, the court shall commit the defendant, if determined to
require mental health treatment, either to the department of mental
health and addiction services for treatment at a hospital, facility,
or agency as determined clinically appropriate by the department of
mental health and addiction services or to another medical or
psychiatric facility, as appropriate. Prior to placing the defendant,
the department of mental health and addiction services shall obtain
court approval for that placement. If the court conducts such a
hearing and if it makes those findings by clear and convincing
evidence, the court shall commit the defendant, if determined to
require treatment for an intellectual disability, to a facility
operated by the department of developmental disabilities, or another
facility, as appropriate. In determining the place of commitment, the
court shall consider the extent to which the person is a danger to
the person and to 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 the welfare of
the defendant. In weighing these factors, the court shall give
preference to protecting public safety.
(2)
If a court makes a commitment of a defendant under division (D)(1) of
this section, the prosecutor shall send to the hospital, facility, or
agency where the defendant is placed by the department of mental
health and addiction services or to the defendant's place of
commitment all reports of the defendant's current mental condition
and, except as otherwise provided in this division, any other
relevant information, including, but not limited to, a transcript of
the hearing held pursuant to division (A)(2) of this section, copies
of relevant police reports, and copies of any prior arrest and
conviction records that pertain to the defendant and that the
prosecutor possesses. The prosecutor shall send the reports of the
defendant's current mental condition in every case of commitment,
and, unless the prosecutor determines that the release of any of the
other relevant information to unauthorized persons would interfere
with the effective prosecution of any person or would create a
substantial risk of harm to any person, the prosecutor also shall
send the other relevant information. Upon admission of a defendant
committed under division (D)(1) of this section, the place of
commitment shall send to the board of alcohol, drug addiction, and
mental health services or the community mental health board serving
the county in which the charges against the defendant were filed a
copy of all reports of the defendant's current mental condition and a
copy of the other relevant information provided by the prosecutor
under this division, including, if provided, a transcript of the
hearing held pursuant to division (A)(2) of this section, the
relevant police reports, and the prior arrest and conviction records
that pertain to the defendant and that the prosecutor possesses.
(3)
If a court makes a commitment under division (D)(1) of this section,
all further proceedings shall be in accordance with sections 2945.401
and 2945.402 of the Revised Code.
Sec.
2945.401.
(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. If the jurisdiction is
terminated under this division because of the final termination of
the commitment resulting from the expiration of the maximum prison
term or term of imprisonment described in division (J)(1)(b) of this
section, the court or prosecutor may file an affidavit for the civil
commitment of the defendant or person pursuant to Chapter 5122. or
5123. of the Revised Code.
(B)
A hearing conducted under any provision of sections 2945.37 to
2945.402 of the Revised Code shall not be conducted in accordance
with Chapters 5122. and 5123. of the Revised Code. Any person who is
committed pursuant to section 2945.39 or 2945.40 of the Revised Code
shall not voluntarily admit the person or be voluntarily admitted to
a hospital or institution pursuant to section 5122.02, 5122.15,
5123.69, or 5123.76 of the Revised Code. All other provisions of
Chapters 5122. and 5123. of the Revised Code regarding
hospitalization or institutionalization shall apply to the extent
they are not in conflict with this chapter. A commitment under
section 2945.39 or 2945.40 of the Revised Code shall not be
terminated and the conditions of the commitment shall not be changed
except as otherwise provided in division (D)(2) of this section with
respect to a person with an intellectual disability subject to
institutionalization by court order or except by order of the trial
court.
(C)
The department of mental health and addiction services or the
institution, facility, or program to which a defendant or person has
been committed under section 2945.39 or 2945.40 of the Revised Code
shall report in writing to the trial court, at the times specified in
this division, as to whether the defendant or person remains a person
with a mental illness subject to court order or a person with an
intellectual disability subject to institutionalization by court
order and, in the case of a defendant committed under section 2945.39
of the Revised Code, as to whether the defendant remains incompetent
to stand trial. The department, institution, facility, or program
shall make the reports after the initial six months of treatment and
every two years after the initial report is made. The trial court
shall provide copies of the reports to the prosecutor and to the
counsel for the defendant or person. Within thirty days after its
receipt pursuant to this division of a report from the department,
institution, facility, or program, the trial court shall hold a
hearing on the continued commitment of the defendant or person or on
any changes in the conditions of the commitment of the defendant or
person. The defendant or person may request a change in the
conditions of confinement, and the trial court shall conduct a
hearing on that request if six months or more have elapsed since the
most recent hearing was conducted under 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.
Except
as otherwise provided in division (D)(2) of this section, if the
designee of the department of mental health and addiction services
recommends on-grounds unsupervised movement, off-grounds supervised
movement, or nonsecured status for the defendant or person or
termination of the defendant's or person's commitment, the following
provisions apply:
(a)
If the department's designee recommends on-grounds unsupervised
movement or off-grounds supervised movement, the department's
designee shall file with the trial court an application for approval
of the movement and shall send a copy of the application to the
prosecutor. Within fifteen days after receiving the application, the
prosecutor may request a hearing on the application and, if a hearing
is requested, shall so inform the department's designee. If the
prosecutor does not request a hearing within the fifteen-day period,
the trial court shall approve the application by entering its order
approving the requested movement or, within five days after the
expiration of the fifteen-day period, shall set a date for a hearing
on the application. If the prosecutor requests a hearing on the
application within the fifteen-day period, the trial court shall hold
a hearing on the application within thirty days after the hearing is
requested. If the trial court, within five days after the expiration
of the fifteen-day period, sets a date for a hearing on the
application, the trial court shall hold the hearing within thirty
days after setting the hearing date. At least fifteen days before any
hearing is held under this division, the trial court shall give the
prosecutor written notice of the date, time, and place of the
hearing. At the conclusion of each hearing conducted under this
division, the trial court either shall approve or disapprove the
application and shall enter its order accordingly.
(b)
If the department's designee recommends termination of the
defendant's or person's commitment at any time or if the department's
designee recommends the first of any nonsecured status for the
defendant or person, the department's designee shall send written
notice of this recommendation to the trial court and to the local
forensic center. The local forensic center shall evaluate the
committed defendant or person and, within thirty days after its
receipt of the written notice, shall submit to the trial court and
the department's designee a written report of the evaluation. The
trial court shall provide a copy of the department's designee's
written notice and of the local forensic center's written report to
the prosecutor and to the counsel for the defendant or person. Upon
the local forensic center's submission of the report to the trial
court and the department's designee, all of the following apply:
(i)
If the forensic center disagrees with the recommendation of the
department's designee, it shall inform the department's designee and
the trial court of its decision and the reasons for the decision. The
department's designee, after consideration of the forensic center's
decision, shall either withdraw, proceed with, or modify and proceed
with the recommendation. If the department's designee proceeds with,
or modifies and proceeds with, the recommendation, the department's
designee shall proceed in accordance with division (D)(1)(b)(iii) of
this section.
(ii)
If the forensic center agrees with the recommendation of the
department's designee, it shall inform the department's designee and
the trial court of its decision and the reasons for the decision, and
the department's designee shall proceed in accordance with division
(D)(1)(b)(iii) of this section.
(iii)
If the forensic center disagrees with the recommendation of the
department's designee and the department's designee proceeds with, or
modifies and proceeds with, the recommendation or if the forensic
center agrees with the recommendation of the department's designee,
the department's designee shall work with community mental health
services providers, programs, facilities, or boards of alcohol, drug
addiction, and mental health services or community mental health
boards to develop a plan to implement the recommendation. If the
defendant or person is on medication, the plan shall include, but
shall not be limited to, a system to monitor the defendant's or
person's compliance with the prescribed medication treatment plan.
The system shall include a schedule that clearly states when the
defendant or person shall report for a medication compliance check.
The medication compliance checks shall be based upon the effective
duration of the prescribed medication, taking into account the route
by which it is taken, and shall be scheduled at intervals
sufficiently close together to detect a potential increase in mental
illness symptoms that the medication is intended to prevent.
The
department's designee, after consultation with the board of alcohol,
drug addiction, and mental health services or the community mental
health board serving the area, shall send the recommendation and plan
developed under division (D)(1)(b)(iii) of this section, in writing,
to the trial court, the prosecutor, and the counsel for the committed
defendant or person. The trial court shall conduct a hearing on the
recommendation and plan developed under division (D)(1)(b)(iii) of
this section. Divisions (D)(1)(c) and (d) and (E) to (J) of this
section apply regarding the hearing.
(c)
If the department's designee's recommendation is for nonsecured
status or termination of commitment, the prosecutor may obtain an
independent expert evaluation of the defendant's or person's mental
condition, and the trial court may continue the hearing on the
recommendation for a period of not more than thirty days to permit
time for the evaluation.
The
prosecutor may introduce the evaluation report or present other
evidence at the hearing in accordance with the Rules of Evidence.
(d)
The trial court shall schedule the hearing on a department's
designee's recommendation for nonsecured status or termination of
commitment and shall give reasonable notice to the prosecutor and the
counsel for the defendant or person. Unless continued for independent
evaluation at the prosecutor's request or for other good cause, the
hearing shall be held within thirty days after the trial court's
receipt of the recommendation and plan.
(2)(a)
Division (D)(1) of this section does not apply to on-grounds
unsupervised movement of a defendant or person who has been committed
under section 2945.39 or 2945.40 of the Revised Code, who is a person
with an intellectual disability subject to institutionalization by
court order, and who is being provided residential habilitation,
care, and treatment in a facility operated by the department of
developmental disabilities.
(b)
If, pursuant to section 2945.39 of the Revised Code, the trial court
commits a defendant who is found incompetent to stand trial and who
is a person with an intellectual disability subject to
institutionalization by court order, if the defendant is being
provided residential habilitation, care, and treatment in a facility
operated by the department of developmental disabilities, if an
individual who is conducting a survey for the department of health to
determine the facility's compliance with the certification
requirements of the medicaid program cites the defendant's receipt of
the residential habilitation, care, and treatment in the facility as
being inappropriate under the certification requirements, if the
defendant's receipt of the residential habilitation, care, and
treatment in the facility potentially jeopardizes the facility's
continued receipt of federal medicaid moneys, and if as a result of
the citation the chief clinical officer of the facility determines
that the conditions of the defendant's commitment should be changed,
the department of developmental disabilities may cause the defendant
to be removed from the particular facility and, after evaluating the
risks to public safety and the welfare of the defendant and after
determining whether another type of placement is consistent with the
certification requirements, may place the defendant in another
facility that the department selects as an appropriate facility for
the defendant's continued receipt of residential habilitation, care,
and treatment and that is a no less secure setting than the facility
in which the defendant had been placed at the time of the citation.
Within three days after the defendant's removal and alternative
placement under the circumstances described in division (D)(2)(b) of
this section, the department of developmental disabilities shall
notify the trial court and the prosecutor in writing of the removal
and alternative placement.
The
trial court shall set a date for a hearing on the removal and
alternative placement, and the hearing shall be held within
twenty-one days after the trial court's receipt of the notice from
the department of developmental disabilities. At least ten days
before the hearing is held, the trial court shall give the
prosecutor, the department of developmental disabilities, and the
counsel for the defendant written notice of the date, time, and place
of the hearing. At the hearing, the trial court shall consider the
citation issued by the individual who conducted the survey for the
department of health to be prima-facie evidence of the fact that the
defendant's commitment to the particular facility was inappropriate
under the certification requirements of the medicaid program and
potentially jeopardizes the particular facility's continued receipt
of federal medicaid moneys. At the conclusion of the hearing, the
trial court may approve or disapprove the defendant's removal and
alternative placement. If the trial court approves the defendant's
removal and alternative placement, the department of developmental
disabilities may continue the defendant's alternative placement. If
the trial court disapproves the defendant's removal and alternative
placement, it shall enter an order modifying the defendant's removal
and alternative placement, but that order shall not require the
department of developmental disabilities to replace the defendant for
purposes of continued residential habilitation, care, and treatment
in the facility associated with the citation issued by the individual
who conducted the survey for the department of health.
(E)
In making a determination under this section regarding nonsecured
status or termination of commitment, the trial court shall consider
all relevant factors, including, but not limited to, all of the
following:
(1)
Whether, in the trial court's view, the defendant or person currently
represents a substantial risk of physical harm to the defendant or
person or others;
(2)
Psychiatric and medical testimony as to the current mental and
physical condition of the defendant or person;
(3)
Whether the defendant or person has insight into the defendant's or
person's condition so that the defendant or person will continue
treatment as prescribed or seek professional assistance as needed;
(4)
The grounds upon which the state relies for the proposed commitment;
(5)
Any past history that is relevant to establish the defendant's or
person's degree of conformity to the laws, rules, regulations, and
values of society;
(6)
If there is evidence that the defendant's or person's mental illness
is in a state of remission, the medically suggested cause and degree
of the remission and the probability that the defendant or person
will continue treatment to maintain the remissive state of the
defendant's or person's illness should the defendant's or person's
commitment conditions be altered.
(F)
At any hearing held pursuant to division (C) or (D)(1) or (2) of this
section, the defendant or the person shall have all the rights of a
defendant or person at a commitment hearing as described in section
2945.40 of the Revised Code.
(G)
In a hearing held pursuant to division (C) or (D)(1) of this section,
the prosecutor has the burden of proof as follows:
(1)
For a recommendation of termination of commitment, to show by clear
and convincing evidence that the defendant or person remains a person
with a mental illness subject to court order or a person with an
intellectual disability subject to institutionalization by court
order;
(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.
(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.
(J)(1)
A defendant or person who has been committed pursuant to section
2945.39 or 2945.40 of the Revised Code continues to be under the
jurisdiction of the trial court until the final termination of the
commitment. For purposes of division (J) of this section, the final
termination of a commitment occurs upon the earlier of one of the
following:
(a)
The defendant or person no longer is a person with a mental illness
subject to court order or a person with an intellectual disability
subject to institutionalization by court order, as determined by the
trial court;
(b)
The expiration of the maximum prison term or term of imprisonment
that the defendant or person could have received if the defendant or
person had been convicted of the most serious offense with which the
defendant or person is charged or in relation to which the defendant
or person was found not guilty by reason of insanity;
(c)
The trial court enters an order terminating the commitment under the
circumstances described in division (J)(2)(a)(ii) of this section.
(2)(a)
If a defendant is found incompetent to stand trial and committed
pursuant to section 2945.39 of the Revised Code, if neither of the
circumstances described in divisions (J)(1)(a) and (b) of this
section applies to that defendant, and if a report filed with the
trial court pursuant to division (C) of this section indicates that
the defendant presently is competent to stand trial or if, at any
other time during the period of the defendant's commitment, the
prosecutor, the counsel for the defendant, or 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 is committed files an application with the trial
court alleging that the defendant presently is competent to stand
trial and requesting a hearing on the competency issue or the trial
court otherwise has reasonable cause to believe that the defendant
presently is competent to stand trial and determines on its own
motion to hold a hearing on the competency issue, the trial court
shall schedule a hearing on the competency of the defendant to stand
trial, shall give the prosecutor, the counsel for the defendant, and
the department's designee or the managing officer of the institution
or the director of the facility to which the defendant is committed
notice of the date, time, and place of the hearing at least fifteen
days before the hearing, and shall conduct the hearing within thirty
days of the filing of the application or of its own motion. If, at
the conclusion of the hearing, the trial court determines that the
defendant presently is capable of understanding the nature and
objective of the proceedings against the defendant and of assisting
in the defendant's defense, the trial court shall order that the
defendant is competent to stand trial and shall be proceeded against
as provided by law with respect to the applicable offenses described
in division (C)(1)
or
(2)
of section 2945.38 of the Revised Code and shall enter whichever of
the following additional orders is appropriate:
(i)
If the trial court determines that the defendant remains a person
with a mental illness subject to court order or a person with an
intellectual disability subject to institutionalization by court
order, the trial court shall order that the defendant's commitment to
the department of mental health and addiction services or to an
institution, facility, or program for the treatment of intellectual
disabilities be continued during the pendency of the trial on the
applicable offenses described in division (C)(1)
or
(2)
of section 2945.38 of the Revised Code.
(ii)
If the trial court determines that the defendant no longer is a
person with a mental illness subject to court order or a person with
an intellectual disability subject to institutionalization by court
order, the trial court shall order that the defendant's commitment to
the department of mental health and addiction services or to an
institution, facility, or program for the treatment of intellectual
disabilities shall not be continued during the pendency of the trial
on the applicable offenses described in division (C)(1)
or
(2)
of section 2945.38 of the Revised Code. This order shall be a final
termination of the commitment for purposes of division (J)(1)(c) of
this section.
(b)
If, at the conclusion of the hearing described in division (J)(2)(a)
of this section, the trial court determines that the defendant
remains incapable of understanding the nature and objective of the
proceedings against the defendant or of assisting in the defendant's
defense, the trial court shall order that the defendant continues to
be incompetent to stand trial, that the defendant's commitment to the
department of mental health and addiction services or to an
institution, facility, or program for the treatment of intellectual
disabilities shall be continued, and that the defendant remains
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.
Section
2.
That
existing sections 2945.38, 2945.39, and 2945.401 of the Revised Code
are hereby repealed.
Section
3.
This
act is hereby declared to be an emergency measure necessary for the
immediate preservation of the public peace, health, and safety. The
reason for such necessity is that immediate action is necessary to
effect the change on existing cases where existing restoration of
competency time limitations are waning. Therefore, this act shall go
into immediate effect.
Speaker
___________________ of the House of Representatives.
President
___________________ of the Senate.
Passed
________________________, 20____
Approved
________________________, 20____
Governor.
The section numbering of law
of a general and permanent nature is complete and in conformity with
the Revised Code.
Director, Legislative
Service Commission.
Filed
in the office of the Secretary of State at Columbus, Ohio, on the
____ day of ___________, A. D. 20____.
Secretary of State.
File
No. _________ Effective Date ___________________