Effective: October 12, 2016
Latest Legislation: House Bill 158 - 131st General Assembly
(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 mentally ill person 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 mentally ill person 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 mentally ill person 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) 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 mentally ill person 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 i ntellectual disabilities be continued during the pendency of the trial on the applicable offenses described in division (C)(1) of section 2945.38 of the Revised Code.
(ii) If the trial court determines that the defendant no longer is a mentally ill person 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 i ntellectual disabilities shall not be continued during the pendency of the trial on the applicable offenses described in division (C)(1) 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 i ntellectual 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.
Structure Ohio Revised Code
Section 2945.01 | Trial Definitions.
Section 2945.02 | Setting and Continuing Cases.
Section 2945.03 | Control of Trial.
Section 2945.04 | Orders to Prevent Intimidation of Attorney, Victim or Witness in Criminal Case.
Section 2945.05 | Defendant May Waive Jury Trial.
Section 2945.06 | Procedure for Trial by Court.
Section 2945.08 | Prosecution in Wrong County - Proceeding.
Section 2945.09 | Grounds for Objection.
Section 2945.10 | Order of Proceedings of Trial.
Section 2945.11 | Charge to the Jury as to Law and Fact.
Section 2945.12 | When Accused May Be Tried in His Absence.
Section 2945.13 | Joint Trials in Felony Cases.
Section 2945.14 | Mistake in Charging Offense.
Section 2945.15 | Discharge of Defendant.
Section 2945.16 | View of the Premises - Expenses of View.
Section 2945.17 | Right to Jury Trial.
Section 2945.171 | Written Verdicts.
Section 2945.20 | Separate Trial for Capital Offense.
Section 2945.21 | Peremptory Challenges.
Section 2945.23 | When Peremptory Challenges Required.
Section 2945.25 | Challenges for Cause.
Section 2945.26 | Challenge for Cause.
Section 2945.27 | Challenges for Cause to Be Made Before Jury Sworn.
Section 2945.28 | Form of Oath to Jury.
Section 2945.29 | Jurors Becoming Unable to Perform Duties.
Section 2945.30 | Medical Attendance of Juror.
Section 2945.31 | Separation of Jurors.
Section 2945.32 | Oath to Officers if Jury Sequestered.
Section 2945.33 | Supervision of Jury After Case Submitted to Them.
Section 2945.34 | Admonition if Jurors Separate During Trial.
Section 2945.35 | Papers the Jury May Take.
Section 2945.36 | For What Cause Jury May Be Discharged.
Section 2945.37 | Competency to Stand Trial Definitions - Hearing.
Section 2945.371 | Evaluations and Reports of the Defendant's Mental Condition.
Section 2945.38 | Competence to Stand Trial.
Section 2945.39 | Expiration of the Maximum Time for Treatment for Incompetency.
Section 2945.391 | Not Guilty by Reason of Insanity Finding.
Section 2945.392 | Expert Testimony of the Battered Woman Syndrome.
Section 2945.40 | Acquittal by Reason of Insanity.
Section 2945.401 | Incompetency Finding or Insanity Acquittal Continuing Jurisdiction of Court.
Section 2945.402 | Conditional Release.
Section 2945.41 | Rules Applicable in Criminal Cases.
Section 2945.42 | Competency of Witnesses.
Section 2945.43 | Defendant May Testify.
Section 2945.44 | Witnesses Turning State's Evidence.
Section 2945.45 | Subpoenas to Issue to Any County.
Section 2945.451 | Employer May Not Penalize Employee for Being Subpoenaed to Criminal Proceeding.
Section 2945.46 | Attendance of Witness Enforced.
Section 2945.47 | Testimony of Prisoner.
Section 2945.48 | Witness May Be Placed in Jail.
Section 2945.481 | Testimony of Child Victim.
Section 2945.482 | Taking Testimony of a Victim With a Developmental Disability.
Section 2945.491 | Taking Testimony of a Victim With a Developmental Disability.
Section 2945.50 | Application for Deposition in Criminal Cases.
Section 2945.51 | When Imprisoned Defendant May Be Taken to Deposition - Expenses.
Section 2945.52 | Counsel Appointed Shall Represent the Defendant.
Section 2945.53 | Right of Accused to Examine Witness.
Section 2945.54 | Conduct of Examination.
Section 2945.55 | Testimony of Previous Identification.
Section 2945.56 | Rebuttal of Defendant's Character Evidence.
Section 2945.57 | Number of Witnesses to Character.
Section 2945.59 | Proof of Defendant's Motive.
Section 2945.63 | Child Pornography Offered as Evidence; Custody.
Section 2945.64 | Embezzlement Prima-Facie Evidence.
Section 2945.65 | Evidence Obtained as Part of Test to Determine Pregnancy.
Section 2945.67 | Appeal by State by Leave of Court.
Section 2945.71 | Time for Trial.
Section 2945.72 | Extending Time for Hearing or Trial.
Section 2945.73 | Delay in Hearing or Trial.
Section 2945.74 | Defendant May Be Convicted of Lesser Offense.
Section 2945.75 | Degree of Offense - Proof of Prior Convictions.
Section 2945.77 | Polling Jury.
Section 2945.78 | Recording the Verdict.
Section 2945.79 | Causes for New Trial.
Section 2945.80 | Written Motion for New Trial.
Section 2945.81 | Causes to Be Sustained by Affidavits.
Section 2945.83 | When New Trial Shall Not Be Granted.
Section 2945.831 | Motion for New Trial Not Necessary for Appellate Review.