Ohio § 2945.401

§ 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.