Opinion
No. 72-702
Decided March 14, 1973.
Criminal law — Accused found insane and committed to Lima State Hospital — Later found restored to reason — Accused tried, found not guilty by reason of insanity — R.C. 2945.39 — Presumption that insanity continues — Presumption not overcome, when — Habeas corpus — Remedy not available, when.
Where a defendant, prior to trial on an indictment, is determined to be insane and is committed to the Lima State Hospital until restored to reason, and, subsequent to such confinement, the defendant is found to have been sufficiently restored to reason so that he is capable of standing trial, such latter finding, upon the subsequent determination by the trial court that the defendant is not guilty by reason of insanity, is not sufficient to overcome the statutory presumption of R.C. 2945.39 that defendant's insanity continues.
IN HABEAS CORPUS.
This cause arose as an original action in habeas corpus filed in this court by petitioner, John R. Fortune.
In 1969, petitioner was indicted for burglary (R.C. 2907.10) in Columbiana County, and a plea of not guilty by reason of insanity was entered. In accordance with R.C. 2945.40, petitioner was committed to the Lima State Hospital (hereafter, Lima) for a 30-day observation period, commencing October 10, 1969. Thereafter, petitioner was determined legally insane and was committed to Lima.
In April 1971, the superintendent of the Lima State Hospital found petitioner to have had a "remission from his psychosis," and he was transferred to Columbiana County to stand trial on the original indictment.
At the trial in July 1971, petitioner, while represented by counsel, filed a written waiver of jury trial and was tried before the court. The court, having determined that the necessary elements for a finding of guilt of attempt to commit a burglary were present, held that petitioner was not guilty by reason of insanity. On July 21, 1971, petitioner was committed to Lima in accordance with R.C. 2945.39.
On September 22, 1971, petitioner filed a petition for a writ of habeas corpus in this court alleging identical grounds for relief as contained herein.
On January 27, 1972, petitioner was given a conditional release from Lima by the Common Pleas Court of Allen County.
Petitioner's first writ was dismissed on April 14, 1972, as being moot as petitioner had been released from custody pursuant to R.C. 2945.39. Petitioner subsequently violated the conditions of this release and was readmitted to Lima on June 23, 1972.
Petitioner filed this writ of habeas corpus on September 12, 1972, seeking release from Lima.
Mr. M. Claude Sharf, for petitioner.
Mr. William J. Brown, attorney general, and Mr. Jeffrey L. McClelland, for respondent.
The primary issue is whether a finding that a defendant who previously was committed to Lima has been sufficiently restored to reason so that he is capable of standing trial is sufficient to overcome the statutory presumption of continuing insanity resulting from a trial court's finding of not guilty by reason of insanity. We hold that it is not.
Petitioner was originally sent to Lima in accordance with R.C. 2945.40, which provides in part that:
"In any case in which insanity is set up as a defense * * * the court may commit the defendant to * * * the Lima State Hospital, where the defendant shall remain under observation for such time as the court directs not exceeding one month. * * *" It having been determined during this period that petitioner was then legally insane, it was proper for the court to commit him to Lima indefinitely until such time as he was sufficiently "restored to reason" (R.C. 2945.38), so that his trial could continue.
The April 1971 finding by the Superintendent of the Lima State Hospital, holding that petitioner had a "remission from his psychosis" and was able to stand trial, constituted nothing more than a finding that he had been "restored to reason." The sole issue determined at that stage of the proceeding was "whether the relator is of sufficient soundness of mind to understand and appreciate the nature of the charge against him, to comprehend his situation, and whether he is mentally capable of furnishing his counsel the facts essential to the presentation of a proper defense." State, ex rel. Townsend, v. Bushong (1946), 146 Ohio St. 271, 274.
An adjudication of not guilty by reason of insanity constitutes a determination that the defendant, at the time of the commission of the act with which he is charged, was insane ( State v. Staten, 18 Ohio St.2d 13), and such insanity is presumed to thereafter continue. Such presumption of insanity is not affected by an interim finding that the defendant was sufficiently restored to reason so as to be able to stand trial.
Therefore, upon conclusion of petitioner's trial and a determination of not guilty by reason of insanity, the statutory presumption that such insanity has continued from the time of the crime attaches immediately, and the court has the duty to direct that the accused be confined to Lima "* * * until the judge of the Court of Common Pleas of Allen County, the Superintendent of the Lima State Hospital, an alienist to be designated by said judge and superintendent, or a majority of them, after notice and hearing, find and determine that said defendant's sanity has been restored, and that his release will not be dangerous." (Emphasis added.) R.C. 2945.39.
It is evident that a lesser degree of sanity is required by R.C. 2945.38 than that required by R.C. 2945.39. Under the former, the defendant need only be "restored to reason" so that he may stand trial, whereas under the latter, it must not only be determined that his "sanity has been restored," but, additionally, that his "release will not be dangerous."
Inasmuch as the presence of a mental illness does not necessarily mean that one is mentally incompetent to stand trial or to waive his right to a jury trial, likewise, the mere ability to assist counsel in the preparation of one's defense does not necessarily indicate that such person would not be dangerous if released to society. It is a proper responsibility of the courts that they safeguard the public from the possibility that the defendant might, due to his mental condition, conduct himself in a criminally unacceptable manner again. (See Lynch v. Overholser (1962), 369 U.S. 705.)
Petitioner cites the syllabus of Collins v. Campbell (1965), 4 Ohio App.2d 42, which provides:
"Section 2945.39, Revised Code, does not provide an exclusive method for the release of one acquitted on the sole ground of his insanity at the time of a commission of a criminal act. If such person is declared sane at the time of trial, the presumption that such insanity continues has been overcome, and he may have recourse to the writ of habeas corpus to secure his release from a commitment to the Lima State Hospital." (Emphasis added.)
In this case there was no such declaration that the petitioner was sane at the time of trial; and the previous finding that he had been restored to reason did not constitute such a declaration.
Absent a finding and determination by those persons named in R.C. 2945.39, supra, that the petitioner satisfies the statutory conditions of release, petitioner lacks grounds for release under this writ of habeas corpus.
We hold that the finding, that a defendant has been sufficiently returned to reason so as to enable him to stand trial, is not itself adequate to overcome the attachment of the statutory presumption of continuing insanity which results from a judgment of not guilty by reason of insanity.
Petitioner's second cause of action attacks the constitutionality of R.C. 2945.39. As stated in Harley v. Alvis (1957), 167 Ohio St. 48, 49: "A proceeding in habeas corpus will not lie to test the constitutionality of a statute in favor of one who has been convicted, where the court in which the conviction was obtained had jurisdiction to determine the question of constitutionality."
Petitioner's writ of habeas corpus is denied.
Writ denied.
O'NEILL, C.J., HERBERT, CORRIGAN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.