State v. Jackson

[Cite as State v. Jackson, 2021-Ohio-1884.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109788
v. :

MARQUIS JACKSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: June 3, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-618156-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan Helton, Assistant Prosecuting
Attorney, for appellee.

Stanley Josselson, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Marquis Jackson, appeals from the trial court’s

denial of his motion to dismiss. Finding merit to the appeal, we reverse and remand

for the trial court to enter an order dismissing the indictment against Jackson.
I. Factual and Procedural Background

In 2017, Jackson was arrested on an outstanding registered warrant

issued in June 2013, in Cleveland M.C. No. 2013CRA017937.1 He was subsequently

indicted on charges of aggravated robbery, robbery, theft, and contributing to the

delinquency of a minor. Jackson was referred to the Court’s Psychiatric Clinic for a

psychiatric evaluation to determine whether he was competent to stand trial.

At a hearing on October 31, 2017, Jackson appeared with retained

counsel. Jackson’s counsel and the state stipulated to Dr. James Rodio’s psychiatric

report opining that Jackson was not competent to stand trial, but restorable within

the relevant statutory timeframe. The court remanded Jackson to Northcoast

Behavioral Health (“NBH”) for treatment and restoration.

Jackson’s retained counsel subsequently filed a motion to transfer

Jackson’s case to the Cuyahoga County Mental Health and Developmental

Disabilities docket. The court never ruled on this motion.

At a review hearing in June 2018, Jackson appeared with his retained

counsel. The parties stipulated to Dr. Jeffrey Khan’s report opining that Jackson

lacked the ability to adequately assist with his defense, but that there was a

substantial probability that he would be restored within the relevant statutory

1 This case was pending while Jackson was resolving another case in which he was
sentenced to four years in prison. See Cuyahoga C.P. No. CR-13-575250. In fact,
according to the indictments, the date of offense giving rise to the instant case —May 29,
2003 — occurred prior to the subsequent case that was resolved. Despite the existence of
the registered warrant, Jackson was not apprised of or arrested on that warrant until he
was released from prison in 2017.
timeframe if he continued with treatment. The court ordered Jackson to continue

with treatment at NBH.

On November 2, 2018, the trial court conducted a competency hearing,

which we note was reduced to six pages of transcript. At the hearing, Jackson was

represented by his retained counsel. The parties stipulated to Dr. Susan Hatters

Friedman’s report opining that Jackson is mentally ill and subject to court-ordered

civil commitment. Following the stipulation, the state orally requested “pursuant to

R.C. 2945.38” that the trial court retain jurisdiction over Jackson. The trial court

then stated:

Okay. Do we need to do anything further other than — I will make the
finding that Mr. Jackson is mentally ill subject to court[-]ordered civil
commitment. And I do find that Northcoast Behavioral Hospital will
be the least restrictive treatment alternative at this time. Counsel, is
there anything else the Court needs to do other than retain jurisdiction?

(Tr. 4-5.) After the parties both answered in the negative, the trial court adjourned

the hearing. The trial court did not make any additional findings, and the state

presented no evidence for the trial court to consider.

The court journalized the following order, which states in relevant part,

Competency hearing held 11/02/2018. Parties stipulate to the report
written by Susan Hatters Friedman, M.D. Dr. Hatters Friedman opines
with reasonable medical certainty that Mr. Jackson is unable to
understand the nature and objective of the proceedings against him
and lacks the ability to adequately assist in his defense. Dr. Hatters
Friedman opines that Mr. Jackson is a mentally ill person subject to a
court-ordered civil commitment and that Northcoast Behavioral
Healthcare is the least restrictive treatment alternative as this time.

On November 26, 2018, the trial court entered a nunc pro tunc journal entry to

reflect that the trial court “retains jurisdiction.”
 On August 5, 2019, the trial court conducted a review hearing pursuant

to R.C. 2945.401. Although Jackson had retained counsel, the court inexplicably

assigned a public defender to represent Jackson. At the hearing, the state and the

court-assigned public defender stipulated to Jackson’s continued commitment at

NBH. There is nothing in the record evidencing that notice of the review hearing

was sent to Jackson’s retained counsel or that counsel had moved to withdraw from

the case.

On March 4, 2020, Jackson’s retained counsel moved the trial court for

a status hearing and disposition of Jackson’s case. In the motion, counsel advised

that Jackson’s mother obtained guardianship over Jackson, and thus requested that

he be released into her care and custody. The trial court denied the motion the same

day, stating that “counsel had not filed a notice of appearance.” The following day,

Jackson’s retained counsel filed a notice of appearance. The trial court then again

denied Jackson’s motion for a status hearing and disposition, presumably on the

merits of the request.

In May 2020, Jackson’s retained counsel filed a motion to dismiss and

discharge Jackson pursuant to R.C. 2945.39. In the motion, he contended that the

trial court failed to follow the statutory mandates of R.C. 2945.39 to retain

jurisdiction. The state opposed the motion, contending that the trial court had

jurisdiction over Jackson for up to 11 years. The trial court summarily denied the

motion. Jackson timely appealed.
 This court granted the state’s request to supplement the appellate

record with (1) the transcript of the November 2, 2018 hearing, and (2) a journal

entry filed on July 16, 2020, after the trial court held another statutory review

hearing. Despite the trial court undoubtedly having notice that Jackson had

retained counsel, it again assigned a public defender to represent Jackson at the July

2020 review hearing. At the hearing, the court-assigned public defender acted on

Jackson’s behalf, and stipulated to and signed a journal entry stating that Jackson

(1) remains a mentally ill person subject to civil commitment, and that NBH is the

least restrictive treatment for his needs and the safety of the community, and (2) was

granted Level 3 and Full Level 4 movement privileges. The record is again entirely

devoid of Jackson’s retained counsel receiving notification of the review hearing, or

any motion to withdraw by Jackson’s retained counsel.

II. The Appeal

Jackson raises the following assignment of error:

The trial court erred in civilly committing [Jackson] and maintaining
jurisdiction over him because, while it conducted a hearing on
[November 2, 2018] concerning Jackson’s competency, there is no
finding that [Jackson] was BOTH a [mentally ill] person subject to
hospitalization/institutionalization AND that he committed the
offenses with which he was charged with clear and convincing
evidence, and in the absence of BOTH findings, the trial court did not
apply to the Probate Court of Cuyahoga County for civil commitment.
Therefore, [Jackson] must be discharged by the trial court and the
criminal case against him must be dismissed.

Simply, Jackson contends that the trial court erred in denying his motion to dismiss

and for discharge because it failed to make the requisite statutory findings pursuant

to R.C. 2945.39(A)(2) for the trial court to retain jurisdiction over him.
 “R.C. 2945.39, along with its related statutes, authorizes a common

pleas court to exercise continuing jurisdiction over a criminal defendant who has

been charged with a violent first- or second-degree felony and who has been found

incompetent to stand trial and remains so after the expiration of R.C. 2945.38’s one-

year time frame for restoring competency.” State v. Williams, 126 Ohio St.3d 65,

2010-Ohio-2453, 930 N.E.2d 770, ¶ 1; R.C. 2945.38 and 2945.39.

After the one-year timeframe for treatment expires and the defendant

remains incompetent to stand trial, R.C. 2945.38(H)(3) directs that further

proceedings must occur under R.C. 2945.39, 2945.401, and 2945.402. Williams at

¶ 12. R.C. 2945.39(A) offers two options that the prosecuting attorney or the trial

court can pursue for a defendant who is mentally ill — either may seek (1) civil

commitment of the defendant in probate court under R.C. Chapter 5122, or (2) to

have the common pleas court retain jurisdiction over the defendant. In this case,

the prosecuting attorney orally requested that the trial court retain jurisdiction over

Jackson pursuant to R.C. 2945.39(A)(2).

“To retain jurisdiction, the trial court must find, by clear and

convincing evidence after a hearing, both that the defendant (a) committed the

charged offense and (b) is a mentally ill person subject to hospitalization by court

order.” Williams at ¶ 13, citing R.C. 2945.39(A)(2)(a) and (b). In making its

determination, “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.” R.C. 2945.39(B).

If the court does not make both findings, R.C. 2945.39(C) mandates

that it must dismiss the indictment and discharge the defendant unless the court or

the prosecuting attorney files for the defendant’s civil commitment in probate court

under R.C. Chapter 5122. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930

N.E.2d 770, at ¶ 14, citing R.C. 2945.39(C). However, “[a] dismissal of charges

under [R.C. 2945.39(C)] is not a bar to further criminal proceedings based on the

same conduct.” Id.

If the court makes both R.C. 2945.39(A)(2) findings, then R.C.

2945.39(D)(1) directs the court to commit the defendant to a hospital, facility, or

agency as deemed appropriate in accordance with the statute. “The court must order

that the defendant be placed in the least-restrictive commitment alternative

available consistent with public safety and the defendant’s welfare, ‘giv[ing]

preference to protecting public safety.’” Williams at ¶ 15, quoting R.C.

2945.39(D)(1).

“Once a court commits a defendant under R.C. 2945.39(D)(1), all

further proceedings are governed by R.C. 2945.401 (which include proceedings

regarding the defendant’s possible placement in nonsecured status; the termination

of the commitment; periodic clinical reports and clinical recommendations on the

defendant’s competence, degree of confinement, and termination of commitment;
and trial court hearing requirements) and 2945.402 (regarding the defendant’s

possible conditional release).” Williams at ¶ 16, citing R.C. 2945.39(D)(3).

In this case, the parties agree that the trial court did not make the

requisite findings under R.C. 2945.39(A)(2) to retain jurisdiction over Jackson. The

dispute is over what remedy is afforded to Jackson. Jackson contends that pursuant

to the plain language of R.C. 2945.39(C), the indictment should be dismissed

because the trial court did not make the findings. The state disagrees that dismissal

of the charges against Jackson is mandated because his retained counsel invited the

error when he did not object or notify the court that it failed to make the requisite

findings. The state alternatively argues that if the invited error doctrine does not

apply, this court should remand the matter to the trial court to allow it to conduct a

proper hearing under R.C. 2945.39(A)(2) and make the appropriate findings.2

III. Invited Error

The doctrine of “invited error” provides that “a party will not be

permitted to take advantage of an error which he himself invited or induced the trial

court to make.” State ex rel. Smith v. O’Connor, 71 Ohio St.3d 660, 663, 646 N.E.2d

1115 (1995). In this case, Jackson’s retained counsel did not invite any error by

failing to object or notify the trial court of its duty to make the requisite statutory

findings. The burden is not on the defendant to ensure that the trial court makes

the requisite findings. Rather, the state requested that the trial court retain

2 The state did not make any argument in the trial court or on appeal that Jackson’s

challenge is barred by res judicata. Accordingly, we will not address its application.
jurisdiction over Jackson. Accordingly, the state had the burden to ensure that the

trial court adhered to its statutory duties and made the appropriate findings when

considering the state’s request. See, e.g., State v. McIntosh, 2d Dist. Montgomery

No. 25445, 2015-Ohio-2786 (finding that the state met its burden of establishing the

elements of R.C. 2945.39(A)(2)); State v. Henderson, 5th Dist. Fairfield No. 13-CA-

61 (finding that the state satisfied its burden under the first prong of R.C.

2945.39(A)(2)). The state’s assertion that counsel invited the error is misplaced.

IV. What is the appropriate remedy?

When a trial court partially or completely fails to follow the procedural

and jurisdictional mandates of R.C. 2945.39(A)(2), what remedy is afforded to a

defendant?

According to the state, this court should remand the case to the trial

court to hold a proper hearing and make the necessary findings. The state contends

that when a judge makes a procedural error, but the record is clear the parties

understand the court’s intention of achieving a certain result, reviewing courts can

remand the case to the trial court to fix the error. In support, the state cites to cases

where the trial court failed to make the statutory findings prior to imposing

consecutive sentences, or when the trial court failed to properly advise a defendant

of postrelease control. In each of these instances, reviewing courts, including this

court, have remanded the matter to the trial court to make the findings, if supported

by law and the record. See State v. Matthews, 8th Dist. Cuyahoga No. 102217, 2015-

Ohio-4072 (remand for consecutive sentence findings); State v. Almashni, 8th Dist.
Cuyahoga No. 101475, 2015-Ohio-606 (remand for imposition of postrelease

control). However, in each of these instances, statutory authority exists permitting

either error-correction by the trial court or authorizing a reviewing court to remand

the matter for the trial court to make the statutory findings. See R.C. 2953.08(G)

(authorizing the appellate court to remand the case to the sentencing court to make

the requisite findings or for resentencing); R.C. 2929.191 (sets forth the procedures

for which the trial court can correct errors in its notification of postrelease control).

No such statutory authority exists under R.C. 2945.39, and our search of instructive

case law yields no results.

According to Jackson, the statute requires dismissal of the indictment.

In support, he cites to this court’s decision in State v. Wright, 8th Dist. Cuyahoga

No. 108343, 2020-Ohio-1271. In Wright, the trial court conducted a hearing

pursuant to R.C. 2945.39(A)(2) in which the state presented testimonial and

documentary evidence that the defendant committed the charged offenses. The trial

court found that clear and convincing evidence existed that Wright committed the

charged offenses, thus satisfying the statutory requirement of R.C.

2945.39(A)(2)(a). This court disagreed, and found that the evidence presented did

not meet the clear and convincing threshold that Wright committed the crimes.

Accordingly, this court concluded that it was appropriate to dismiss the indictment

against Wright because both of the R.C. 2945.39(A)(2) findings were not satisfied.

Id. at ¶ 21.
 In this case, the state presented no evidence at the hearing.

Additionally, the trial court did not evaluate any evidence on its own and did not

make any finding regarding R.C. 2945.39(A)(2)(a). Therefore, unlike the Wright

decision, which was based on the merits of the trial court’s decision, we are

presented with a trial court’s procedural or jurisdictional error. Accordingly, Wright

is distinguishable. We agree with Jackson, however, that R.C. 2945.39 mandates

dismissal.

“R.C. 2945.39 is a civil statute,” and therefore, “a person committed

under the statute need not be afforded the constitutional rights afforded to a

defendant in a criminal prosecution.” Williams at ¶ 37. Nevertheless,“[a] civil

commitment for any purpose is a significant deprivation of liberty and due-process

protections must be afforded to a person facing involuntary commitment.” Id. at

¶ 54, citing Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323

(1979). And although “the right to be free from physical restraint is not absolute,”

the confinement must occur “‘pursuant to proper procedures and evidentiary

standards.’” Williams at id., quoting Kansas v. Hendricks, 521 U.S. 346, 356-357,

117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).

In this case, Jackson’s commitment was not based on proper

procedures and evidentiary standards. The trial court did not hold a proper hearing

pursuant to R.C. 2945.39(A)(2) to retain jurisdiction over him. And even if this

court construed the brief “competency hearing” held on November 2, 2018, as the

type of hearing contemplated in R.C. 2945.39(A)(2), the state failed to present any
evidence for the court to consider, and the court failed to make any findings, let

alone any findings by “clear and convincing evidence.” It is undisputed that the trial

court failed to make the R.C. 2945.39(A)(2)(a) finding that Jackson committed the

offenses charged. Although the trial court verbally made an arguable R.C.

2945.39(A)(2)(b) finding on the record based on Dr. Hatters Friedman’s report and

stipulation by the parties that Jackson “is mentally ill subject to court[-]ordered civil

commitment,” it did not state it was doing so by clear and convincing evidence. But

more importantly, this finding was not journalized.

It is well settled that a court speaks only through its journal. State v.

Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 39, citing State

v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 15. In its

entire November 8, 2018 journal entry and subsequent nunc pro tunc entry, the

court made no independent findings as is required under R.C. 2945.39(A)(2) — the

court only noted Dr. Hatters Friedman’s opinions regarding Jackson’s mental status

and treatment. As the Tenth District stated, “‘[a] civil commitment for any purpose

is a significant deprivation of liberty,’” and “[d]ue to the importance of the interest

at stake, a trial court must articulate its [R.C. 2945.39] findings with clarity and

specificity.” State v. Ellison, 10th Dist. Franklin No. 17AP-328, 2018-Ohio-1835,

¶ 16, quoting Williams at ¶ 54. Here, the trial court’s judgment entry of civil

commitment contains no statutory findings as mandated under R.C. 2945.39(A)(2)

for the trial court to retain jurisdiction over Jackson.
 The trial court’s requirement to make the statutory findings under

R.C. 2945.39 is procedural, but more importantly, jurisdictional. In order for a trial

court to retain jurisdiction over Jackson, the court is statutorily required to make

two findings after a hearing, both by clear and convincing evidence — (1) that the

defendant committed the charged offenses, and (2) that the defendant is a mentally

ill person subject to hospitalization by court order. When a trial court fails to make

these findings, it is statutorily required to dismiss the indictment. See R.C.

2945.39(C). Accordingly, the General Assembly clearly stated that the procedures

in R.C. 2945.39(A)(2) — a hearing, the relevant evidentiary standard, and

mandatory findings — are prerequisites for a trial court to retain jurisdiction over a

defendant. When the General Assembly expressly states that particular statutory

requirements are jurisdictional, the trial court’s error in failing to follow those

requirements, renders the order void. See Smith v. May, 159 Ohio St.3d 106, 2020-

Ohio-61, 148 N.E.3d 542, ¶ 21-23, citing State v. Wilson, 73 Ohio St.3d 40, 44, 652

N.E.2d 196 (1995) (the legislature determines a trial court’s subject-matter

jurisdiction).

In Wilson, the Ohio Supreme Court considered whether the failure to

follow proper bindover procedures rendered the judgment of conviction by the

general division of the court of common pleas void. The case involved the state

prosecuting a juvenile in adult court under the mistaken belief that he was an adult

when he committed the offense. Not only was Wilson a juvenile when he committed

the offense, he was never bound over from juvenile court. In finding that the adult
court lacked jurisdiction and that Wilson’s conviction was therefore void, the

Supreme Court held that “[a]bsent a proper bindover * * *, the juvenile court has

exclusive subject matter jurisdiction over any case concerning a child who is alleged

to be a delinquent.” Wilson at paragraph one of the syllabus. In finding Wilson’s

conviction void, the Supreme Court focused on the express statutory language that

specifically compelled its result — “any prosecution that is had in a criminal court

on the mistaken belief that the child was eighteen years of age or older at the time of

the commission of the offense shall be deemed a nullity.” See former R.C.

2151.26(E), now R.C. 2152.12(H). Accordingly, the General Assembly’s express

language required the Wilson Court to declare the conviction void.

The Ohio Supreme Court has consistently held that the focus should

be on the statutory text and “whether the legislature has ‘clearly state[d]’ that a

particular statutory requirement is jurisdictional.” Smith at ¶ 24, citing Arbaugh v.

Y & H Corp., 546 U.S. 500, 515-516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Pryor

v. Dir., Dept. of Job & Family Servs., 148 Ohio St.3d 1, 2016-Ohio-2907, 68 N.E.3d

729, ¶ 14, 16 (General Assembly provided timely filing of a notice of appeal is the

only jurisdictional requirement for perfecting an appeal); Nucorp, Inc. v.

Montgomery Cty. Bd of Revision, 64 Ohio St.2d 20, 22, 412 N.E.2d 947 (1980)

(declining to “find or enforce jurisdictional barriers not clearly statutorily or

constitutionally mandated”).

In this case, the General Assembly clearly stated that the procedures

in R.C. 2945.39(A)(2) are jurisdictional — i.e., a court may only retain jurisdiction
over a defendant if it conducts a hearing and makes both findings by clear and

convincing evidence. According to the plain language of R.C. 2945.39(C) — “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.” Accordingly, the General

Assembly compels dismissal when a court fails to follow the statutory procedures; it

has not authorized any other remedy or result. Because the trial court failed to make

the statutory findings to retain jurisdiction over Jackson, it abused its discretion in

denying Jackson’s motion to dismiss. Jackson’s assignment of error is sustained.

Judgment reversed and case remanded for the trial court to enter a

judgment dismissing the indictment against Jackson.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and
MARY EILEEN KILBANE, J., CONCUR