State v. Fitzpatrick ( 2022 )

[Cite as State v. Fitzpatrick, 2022-Ohio-4381.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220333
TRIAL NO. B-0104117
Plaintiff-Appellee, :
vs. : O P I N I O N.
STANLEY FITZPATRICK, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: December 9, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Santen & Hughes, J. Robert Linneman, Law Office of Timothy F. Sweeney and
Timothy F. Sweeney, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Effective April 21, 2021, a person who has been diagnosed with certain
specified mental disorders and meets the statutory criteria is ineligible for the death
penalty. R.C. 2929.025(E)(1). This law was made retroactive and applies to defendants
who already had been sentenced to death at the time the law became effective. R.C.
2953.21(A)(1)(a)(iv).
{¶2} Defendant-appellant Stanley Fitzpatrick was sentenced to death in
2002. He filed a postconviction petition claiming that at the time of the offense, he
had a serious mental illness (“SMI”) within the meaning of R.C. 2929.025 at the time
of the offense and could not be sentenced to death. At issue in this case is whether an
order compelling Fitzpatrick to submit to a forensic psychological examination by an
expert chosen by the state is a final appealable order. We hold that it is not, and
therefore, we are without jurisdiction to entertain this appeal.
Background
{¶3} Fitzpatrick pleaded guilty to three counts of aggravated murder, and a
three-judge panel sentenced him to death. The Ohio Supreme Court affirmed his
convictions and death sentence in State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-
3167, 810 N.E.2d 927. Fitzpatrick also filed a petition for postconviction relief. The
trial court denied the petition, and this court affirmed the trial court’s decision. State
v. Fitzpatrick, 1st Dist. Hamilton No. C-030804, 2004-Ohio-5615.
{¶4} On May 5, 2020, Fitzpatrick filed a successive petition for
postconviction relief. He amended that petition twice. In the second amended
petition, he added a claim that he meets the requirements of the SMI statute as set
forth in R.C. 2929.025(A). The trial court denied the state’s motion to dismiss the
petition as to the SMI claim and set the matter for a hearing.
{¶5} On May 31, 2022, the state filed a motion asking the court to appoint an
“expert psychologist” and to authorize funds for that purpose under R.C.
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2929.025(F)(1) and 2929.024(B)(2). Fitzpatrick opposed the motion, contending that
the state’s motion (1) failed to provide sufficient detail about the “breadth, scope, and
procedure” for the proposed forensic examination, (2) failed to establish the state’s
legal right to undertake the examination, (3) failed to account for specific
requirements of the SMI statute, and (4) was not timely filed.
{¶6} On June 27, 2022, the trial court granted the state’s motion. It
appointed the state’s requested expert and ordered that the expert “shall conduct a
forensic examination of Petitioner Fitzpatrick and provide a written report and
testimony on the issue of Mr. Fitzpatrick’s claimed intellectual disability and serious
mental illness.” It further stated that the expert “will evaluate Mr. Fitzpatrick’s
diagnosis of intellectual disability and his diagnosis of having a serious mental illness
which significantly impaired his capacity to exercise rational judgment in relation to
his conduct at the time of his crimes.” Fitzpatrick filed a timely notice of appeal from
the trial court’s order. Pursuant to this court’s order, the parties filed supplemental
briefs on the issue of jurisdiction.
SMI Statute
{¶7} Under the recently enacted SMI statute, a person has a “serious mental
illness” if (1) he or she has been diagnosed with schizophrenia, schizoaffective
disorder, bipolar disorder, or delusional disorder and (2) shows by a preponderance
of the evidence that at the time of the aggravated murder, those conditions, while not
meeting the standard to be found not guilty by reason of insanity or the standard to be
found incompetent to stand trial, nevertheless significantly impaired the person’s
capacity to exercise rational judgment with respect to conforming the person’s conduct
to the requirements of the law or appreciating the nature, consequences or
wrongfulness of the person’s conduct. R.C. 2929.025 (A) and (D)(1).
{¶8} R.C. 2953.21(A)(1)(a)(iv) and 2953.21(A)(3)(b) allow a person convicted
and sentenced to death before the effective date of R.C. 2929.025 to file a
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postconviction petition asking the court to vacate the sentence up to one year from the
effective date of the statute. State v. Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566,
179 N.E.3d 1216, ¶ 196 (Donnelly, J., concurring). The filing of the SMI petition
constitutes a “waiver of any right to be sentenced under the law that existed at the time
the offense was committed and constitutes consent to be sentenced to life
imprisonment without parole * * *.” R.C. 2953.21(A)(3)(b).
{¶9} R.C. 2929.025(F)(1) provides that if a person raises the issue of an SMI
at the time of the commission of the offense, “the court shall order an evaluation of the
person. Section 2929.024 of the Revised Code applies with respect to an evaluation
ordered under this division.” No statement that a person makes in an evaluation
under that section can be used against the person on the issue of guilt in any criminal
action or proceeding. R.C. 2929.025 (F)(2). Nevertheless, the statute provides that
both the prosecutor and defense counsel may call as a witness any examiner who
evaluated the person or prepared a report. Id. “Neither the appointment nor the
testimony of an examiner in an evaluation ordered under division (F)(1) of this section
precludes the prosecutor or defense counsel from calling other witnesses or presenting
other evidence on the issue of the person’s serious mental illness at the time of the
alleged commission of the aggravated murder or on competency or insanity issues.”
Id.Special Proceeding
{¶10} Fitzpatrick argues that the trial court’s order is final as an order that
affects a substantial right in a special proceeding under R.C. 2505.02(B)(2).
Postconviction proceedings under R.C. 2953.21 are special proceedings. State v.
Carter, 8th Dist. Cuyahoga No. 106690, 2018-Ohio-4115, ¶ 11. But Fitzpatrick must
also show that the trial court’s order affects a substantial right.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Fitzpatrick argues that the trial court’s order affects his right against
self-incrimination under the United States and Ohio Constitutions. Both the United
States Supreme Court and the Ohio Supreme Court have rejected similar arguments
in cases involving psychiatric evaluations when a defendant intends to offer
psychiatric evidence in mitigation of sentence or to support his defense.
{¶12} A defendant who neither initiates a psychiatric evaluation nor attempts
to present psychiatric evidence, cannot be compelled to respond to a psychiatrist if his
statements can be used against him in a capital sentencing proceeding. State v.
Madison, 160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867, ¶ 114. But “a different
situation arises where a defendant intends to introduce psychiatric evidence at the
penalty phase.” Id., quoting Estelle v. Smith, 451 U.S. 454, 472, 101 S.Ct. 1866, 68
L.Ed.2d 359 (1981).
{¶13} When a defendant presents expert testimony from a psychiatrist who
has examined the defendant, the prosecution is entitled to rebut that testimony by
presenting testimony from an expert who has also examined the defendant. In those
circumstances, a compelled mental examination of the defendant does not violate the
Fifth Amendment. Id., citing Kansas v. Cheever, 571 U.S. 87, 93-95, 134 S.Ct. 596, 187
L.Ed.2d 519 (2013), and Buchanan v. Kentucky, 483 U.S. 402, 422-424, 107 S.Ct.
2906, 97 L.Ed.2d 336 (1987).
{¶14} A rule shielding the defendant from examination by the state’s expert
“would undermine the adversarial process by depriving the state of the ‘only effective
means of challenging’ the defendant’s psychological experts.” Madison at ¶ 117,
quoting Cheever at 94. This “reasoning logically applies to any case in which a
defendant introduces evidence derived from a defense expert’s mental examination of
the defendant.” Id. at ¶ 118. The Supreme Court reiterated this holding in State v.
Whitaker, Slip Opinion No. 2022-Ohio-2840, ¶ 118-119. It stated, “Any other rule
would undermine the adversarial process, allowing the defendant to provide the jury,
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OHIO FIRST DISTRICT COURT OF APPEALS
through an expert operating as proxy, with a one-sided and potentially inaccurate view
of his mental state at the time of the alleged crime.” Whitaker at ¶ 122, quoting
Cheever at 94.
{¶15} In State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075,
the defendant intended to present expert testimony from a psychiatric examination to
support her self-defense claim based on battered-woman syndrome. The Supreme
Court held that by putting her mental state directly at issue by introducing expert
testimony based on her own statements to the expert, the defendant opened the door
to an examination by the state’s expert. Id. at ¶ 58. “Courts have the inherent authority
to preserve the fairness in the trial process, and allowing the defendant to present
expert testimony * * * while denying the prosecution the ability to introduce such
evidence would unfairly handicap the prosecution and prevent the trier of fact from
making an informed decision.” Id. at ¶ 58.
{¶16} Fitzpatrick also argues that trial court’s order affects his substantial
rights under the SMI statute. He contends that the SMI statute provides substantial
new rights that the defendant is entitled to enforce and protect. Thus, he argues that
when a court applies the new provisions against the petitioner, it will affect his
substantial rights. Under this analysis, however, a petitioner could appeal any adverse
decision in an SMI proceeding and cause the piecemeal appeals that the final-order
statute seeks to prevent. See Gardner v. Ford, 1st Dist. Hamilton No. C-150018, 2015-
Ohio-4242, ¶ 3 (“Restricting appellate review to ‘final decisions’ prevents the
debilitating effect on judicial administration caused by piecemeal appellate
disposition of what is, in practical consequence, but a single controversy.”).
{¶17} Furthermore, while R.C. 2929.025(F)(2) specifically allows the defense
to present its own evidence and the statute grants certain rights to the defendant, its
language does not specifically preclude the state from having its own expert evaluate
the defendant.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Most of Fitzpatrick’s arguments regarding the statutory language go to
the merits of an appeal after a final judgment and not whether the order he seeks to
appeal is a final, appealable order. We cannot hold that an order granting the state’s
motion for an examination by its own expert affects Fitzpatrick’s substantial rights
under the Fifth Amendment or the language of the statute. Therefore, the order
appealed from is not a final order under R.C. 2505.02(B)(2).
Provisional Remedy
{¶19} Fitzpatrick also argues that the order is a final, appealable order under
R.C. 2505.02(B)(4). A three-part test is used to determine whether an order is a “final
order” under R.C. 2502.02(B)(4):
(1) the order must either grant or deny relief sought in a certain type of
proceeding—that the General Assembly calls a “provisional
remedy,” (2) the order must both determine the action with respect
to the provisional remedy and prevent a judgment in favor of the
appealing party with respect to the provisional remedy, and (3) the
reviewing court must decide that the party appealing from the order
would not be afforded a meaningful or effective remedy by an appeal
following final judgment * * *.
State v. Muncie, 91 Ohio St.3d 440, 446-447, 746 N.E.2d 1092 (2001).
{¶20} Fitzpatrick argues that the order involves a provisional remedy. It is
important to remember that the term “provisional remedy” applies to a proceeding,
not an individual order. See id. at 447-448; State v. Powell, 2019-Ohio-4286, 148
N.E.3d 51, ¶ 35 (6th Dist.); Carter, 8th Dist. Cuyahoga No. 106690, 2018-Ohio-4115,
at ¶ 18.
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OHIO FIRST DISTRICT COURT OF APPEALS
[N]o “order” is ever a “provisional remedy” under the statute. The
General Assembly expressly defined a “provisional remedy” as a type of
proceeding. * * * An “order” is thus properly understood as the mandate
from the trial court that grants or denies the particular relief at issue in
that proceeding—not as the provisional remedy itself.
Muncie at 447-448 (a proceeding for forced medication of an incompetent defendant
is a provisional remedy); see, e.g., In re D.H., 152 Ohio St.3d 310, 2018-Ohio-17, 95
N.E.3d 389, ¶ 12-13 (a bindover proceeding in juvenile court is a provisional remedy);
Powell at ¶ 35-38 (procedure for the appointment of experts for indigent defendants
as outlined in Crim.R. 42(E) is a provisional remedy).
{¶21} However, we need not decide whether proceedings under the SMI
statute are the type of ancillary proceedings that qualify as a provisional remedy under
R.C. 2505.02(A)(3). Even if a proceeding under the SMI statute is a provisional
remedy, the order from which Fitzpatrick seeks to appeal does not meet one of the
other requirements of R.C. 2505.02(B)(4): (1) the order must determine the action
with respect to the provisional remedy and (2) this court must determine that the
defendant will not be afforded a meaningful or effective remedy by an appeal following
the disposition of Fitzpatrick’s postconviction petition.
{¶22} R.C. 2953.21(A) specifically provides that a person convicted and
sentenced to death before the effective date of the statute may file a petition for
postconviction relief. An order awarding or denying the relief sought in such a
postconviction proceeding is a final judgment that may be appealed. R.C. 2953.23(B).
Fitzpatrick is not appealing an order denying the relief he sought in his postconviction
petition. Rather, he is appealing from a court order for a psychiatric examination that
was made during the course of the litigation of his postconviction proceeding. The trial
court’s order does not determine the merits of Fitzpatrick’s postconviction petition.
He still may prevail on the merits of his SMI claim in the trial court.
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{¶23} “[C]ourts have held that an immediate appeal from a provisional
remedy is not appropriate where the lack of an immediate appeal does not bar a later
judgment involving an appropriate remedy.” Empower Aviation, LLC v. Butler Cty.
Bd. of Commrs., 165 Ohio App.3d 477, 2009-Ohio-6331, 924 N.E.2d 862, ¶ 21 (1st
Dist.).
{¶24} We hold that the court order in this case is similar to an order requiring
a defendant to undergo a psychiatric examination to determine whether he is
competent to stand trial. While an order finding a defendant incompetent to stand
trial and committing him to an institution is a final, appealable order, State v.
Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852 N.E.2d 711, syllabus, at least one
court has found that an order requiring the defendant to undergo a competency
evaluation is not a final, appealable order. See State v. Eyajan, 11th Dist. Ashtabula
Nos. 2019-A-0005, 2019-Ohio-0006, 2019-A-0007, 2019-A-0008, 2019-A-0009 and
2019-A-0010, 2019-Ohio-419, ¶ 6-7. (“[I]n this case, the court merely ordered a
competency evaluation. The examination has not been held, and there has been no
disposition of either appellant’s competency or the criminal charges against her. Thus,
the appeals are premature.”). Similarly, courts have held that an order finding a
defendant competent to stand trial is not a final, appealable order because the
defendant would have a meaningful and effective remedy of filing an appeal after the
disposition of the case. See State v. Glynn, 2d Dist. Montgomery No. 28824, 2020-
Ohio-7031, ¶ 7-8; State v. Shine, 7th Dist. Mahoning No. 15 MA 0210, 2016-Ohio-1445,
¶ 9; In re J.W., 11th Dist. Geauga No. 2009-G-2939, 2010-Ohio-707, ¶ 11-15.
{¶25} It is important to remember that Fitzpatrick’s SMI claim does not
concern his guilt or innocence. Rather, if he prevails, he consents to a sentence of life
without parole. If he does not prevail, he can appeal the trial court’s decision to this
court, including all the issues he has raised about the propriety of the court-ordered
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psychiatric evaluation. Therefore, the order appealed from is not a final, appealable
order under R.C. 2505.02(B)(4).
Conclusion
{¶26} The trial court’s order in this case is truly interlocutory, and
interlocutory appeals are disfavored in Ohio law. See State ex rel. McGinty v. Eighth
Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 18.
Because the order appealed from is not a final, appealable order within the meaning
of R.C. 2505.02, we are without jurisdiction to determine the appeal, and we must
dismiss it. See State v. Arszman, 1st Dist. Hamilton No. C-170595, 2018-Ohio-4132,
¶ 5.
Appeal dismissed.
.
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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