[Cite as State v. Ortello, 2016-Ohio-1441.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO                                  )    CASE NO. 14 MA 0071
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )    OPINION
                                               )
DANIEL ORTELLO                                 )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 2009 CR 278

JUDGMENT:                                           Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Paul J. Gains
                                                    Mahoning County Prosecutor
                                                    Atty. Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Atty. Rhys B. Cartwright-Jones
                                                    42 N. Phelps Street
                                                    Youngstown, Ohio 44503-1130


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                    Dated: March 30, 2016
[Cite as State v. Ortello, 2016-Ohio-1441.]
WAITE, J.


        {¶1}     Appellant Daniel Ortello appeals the judgment of the Mahoning County

Court of Common Pleas finding that he continues to be a mentally ill person subject

to court-ordered hospitalization. In October of 2009, Appellant was found not guilty

of murder by reason of insanity. The trial court confirmed that Appellant remained

mentally ill in 2010, 2011, 2012, and again in 2014. Appellant is appealing the latest

ruling issued on May 27, 2014. Appellant contends that the trial court abused its

discretion in making the finding that he continued to be a mentally ill person subject

to commitment. Appellant argues that the state's expert witnesses, two psychiatrists,

determined that he suffered from substance induced psychosis, but that he was no

longer showing signs of psychosis and was no longer taking medication for

psychosis. Actually, only one doctor came to this conclusion but even this doctor did

not recommend that Appellant be unconditionally released.          The other expert

determined that Appellant had psychosis that was exacerbated by substance abuse;

that Appellant presented a high risk to the community; that he remained mentally ill

even though he was not taking medication; and that he should not be unconditionally

released. The two experts came to slightly different medical conclusions but both

recommended Appellant not be unconditionally released into the community. The

record here supports the trial court’s conclusion. The judgment of the trial court is

affirmed.

                                              Background

        {¶2}     On March 9, 2009, Appellant was indicted for murder, attempted

murder, felonious assault and having a weapon under a disability. On May 14, 2009,
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he was found incompetent to stand trial and was ordered to receive treatment at

Northcoast Behavioral Health Care Systems in Cleveland, Ohio.

          {¶3}   On August 13, 2009, he was found competent to stand trial. The court

then ordered Appellant to be evaluated by the Forensic Center of Northeast Ohio,

Inc.

          {¶4}   On October 7, 2009, the court conducted a hearing on Appellant's

sanity.     Dr. Thomas G. Gazley of the Forensic Center of Northeast Ohio, Inc.

testified. Based on that testimony, the trial court determined that Appellant was not

guilty by reason of insanity. The court found that Appellant was a mentally ill person

who was subject to court-ordered hospitalization pursuant to R.C. 2945.40 and that

confinement to Heartland Behavioral Healthcare Center in Massillon, Ohio was the

least restrictive alternative available to Appellant.     The court ordered that the

treatment would continue for life unless terminated or changed by the court.

          {¶5}   On March 31, 2010, the court again found that Appellant was mentally

ill, but granted him Level III privileged movement at Heartland.

          {¶6}   On February 28, 2011, the court granted Appellant Level IV privileges

but otherwise continued the prior commitment orders.

          {¶7}   On March 28, 2012, the court found, yet again, that Appellant was a

mentally ill person subject to court-ordered hospitalization.

          {¶8}   On September 23, 2013, Appellant filed a motion for review of his

commitment. He requested termination of his commitment under R.C. 2945.401.
                                                                                   -3-

       {¶9}    On March 27, 2014, the court held another hearing on the matter. Dr.

Stephen Thompson, a psychiatrist at Heartland Behavioral Health Care, was

questioned by the prosecutor and testified that Appellant was diagnosed with

substance abuse psychotic disorder and that it was in remission. (3/27/14 Tr., p. 14.)

Appellant had an extensive history of using multiple substances including cocaine,

cannabis and pain pills.    At the time of the offense, Appellant was using these

substances on nearly a daily basis and had developed paranoid ideas that people

wanted to harm him. He was also having auditory hallucinations. He had previously

received medication for psychosis. After coming to Heartland, his medications had

gradually been discontinued, and he showed no more signs of psychosis. (3/27/14

Tr., p. 15.)

       {¶10} Dr. Thompson concluded that Appellant was no longer a mentally ill

person. (3/27/14 Tr., p. 17.) The court then questioned the doctor as to whether the

change in Appellant's status would represent a threat to public safety or a threat to

the safety of any person.    Dr. Thompson said that there was a potential threat,

especially if Appellant were under the influence of drugs, and recommended Level V

conditional release with continued treatment at Heartland.

       {¶11} After this testimony, the state requested the hearing be continued so

that it could obtain an independent second opinion as allowed by R.C.

2945.401(D)(1)(c).    The court determined that Dr. Thompson's conclusion that

Appellant was no longer mentally ill triggered the state's right to an independent

opinion and a 30-day continuance. The court granted the continuance.
                                                                                  -4-

      {¶12} The continued hearing was held on May 13, 2014. In that hearing, Dr.

Brian C. Welsh, a psychiatrist, testified that it was his opinion that Appellant was

suffering from psychosis, not otherwise specified, in remission as well as substance

abuse in remission. He stated that this was a different diagnosis than that given by

Dr. Thompson. Dr. Welsh believed that Appellant had a psychotic disorder that was

likely exacerbated by substance abuse, rather than psychosis based solely on

substance abuse. (5/13/14 Tr., p. 11.) He testified that Appellant had a risk of

relapse of the disorder, regardless of whether he began abusing drugs again. He

recommended a treatment plan to include a less restrictive setting from the hospital,

such as a group home or other supervised setting. The court, based on Dr. Welsh's

testimony, determined that Appellant was a mentally ill person subject to continued

commitment and that he should remain in treatment. The court recommended Level

V treatment of placement and supervision in a group home setting, and that

Appellant engage in regular substance abuse treatment, random drug toxicology

screening, case management services with a mental health agency, and regular

supervision with the forensic monitor of Mahoning County. Judgment was entered on

May 27, 2014, and this appeal followed.

                            ASSIGNMENT OF ERROR

      The trial court erred in declining to release Daniel Ortello from court

      ordered confinement as a mentally ill person subject to continued

      jurisdiction of the court under Revised Code Section 2945.401 and

      contrary to Daniel Ortello's rights against unlawful confinement as
                                                                                        -5-

       contained in the Fourth and Fourteenth Amendments of the United

       States Constitution.

       {¶13} Appellant contends that the state presented evidence that Appellant

was no longer mentally ill, and at that point, the court should have terminated

commitment and released him. Appellant believes that all the testimony at the most

recent commitment hearing indicated that Appellant was no longer mentally ill.

Appellant is mistaken and his assignment of error is overruled.

       {¶14} R.C. 2945.40 and 2945.401 govern the commitment of individuals

found not guilty by reason of insanity. Upon a verdict finding that a defendant is not

guilty by reason of insanity, the trial court must hold a hearing to determine whether

the defendant is a mentally ill person subject to court order. R.C. 2945.40(A). If the

trial court makes such a finding, the court must commit the person either to the

department of mental health and addiction services for treatment in a hospital, facility,

or agency as determined clinically appropriate by the department of mental health

and addiction services or to another medical or psychiatric facility, as appropriate.

R.C. 2945.40(F).

       {¶15} Pursuant to R.C. 2945.401, a person found not guilty by reason of

insanity and committed pursuant to R.C. 2945.40 remains “subject to the jurisdiction

of the trial court pursuant to that commitment * * * until the final termination of the

commitment.” R.C. 2945.401(A); R.C. 2945.401(J)(1)(a). The final termination of a

commitment may occur if the court finds that the “defendant * * * no longer is a

mentally ill person subject to court order * * *, as determined by the trial court[.]” R.C.
                                                                                   -6-

2945.401(J)(1)(a). Prior to 1996, there was no time limit for keeping a mentally ill

defendant confined after a verdict of not guilty by reason of insanity, but that is no

longer the case if the court makes the R.C. 2945.401(J)(1)(a) finding.

      {¶16} In determining whether commitment should be terminated, the trial

court is required to consider the factors found in R.C. 2945.401(E):

      (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;
                                                                                    -7-

      (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.

      {¶17} A trial court's decision regarding a defendant's commitment pursuant to

R.C. 2945.401 is reviewed on appeal for abuse of discretion. State v. Jung, 132
Ohio App. 3d 369, 372, 724 N.E.2d 1262 (6th Dist.1999), citing State v. Johnson, 32
Ohio St. 3d 109, 112-113, 512 N.E.2d 652 (1987). An abuse of discretion connotes

more than an error of judgment; it implies that the court's attitude is unreasonable,

arbitrary or unconscionable. State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d
144 (1983). Furthermore, “the weight to be given the evidence and the credibility of

the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St. 2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

      {¶18} Appellant is correct that the state's first expert testified that Appellant

was no longer mentally ill. According to statute, however, that pronouncement does

not constitute the end of Appellant's commitment. R.C. 2945.401(D)(1) states:
                                                                                -8-

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:


***


(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
                                                                                     -9-

      recommendation for a period of not more than thirty days to permit time

      for the evaluation. (Emphasis added.)

      {¶19} In this case, the court did not order final termination of commitment at

the March 27, 2014 hearing because the prosecutor invoked the right to a 30-day

continuance of the hearing and because the information presented by Dr. Gazley

was insufficient for the court to apply the factors found in R.C. 2945.401(E). At the

continued hearing on May 13, 2014, the state obtained a second opinion by Dr.

Welsh. This second opinion differed from the opinion of Dr. Gazley. Dr. Welsh

examined Appellant and reviewed his mental health records to determine if he was

presently a mentally ill person. He concluded that Appellant was diagnosed with

psychosis, not otherwise specified, that it was in remission, and that Appellant was

drug dependent. He disagreed with Dr. Welsh by concluding that Appellant “has a

psychotic disorder that was likely exacerbated by substance abuse, not as a sole

reason for the substance abuse.” (5/13/14 Tr., p. 11.) Dr. Welsh stated that “if he

was to remain sober, I can't say with all certainty that he wouldn't have a relapse in

mental health condition.” (5/13/14 Tr., p. 12.) Dr. Welsh also examined the risk

factors regarding Appellant's termination of commitment and return to life with the

general public, and concluded that there was a “significant risk.” (5/13/14 Tr., p. 17.)

Dr. Welsh concluded that Appellant was mentally ill and subject to continued

commitment. The trial court, in weighing the evidence, concluded that “the defendant

is a mentally ill person subject to continued commitment and that taking into account
                                                                                  -10-

the public safety and the welfare of the defendant he should remain in treatment.”

(5/13/14 Tr., p. 32.)

       {¶20} There is no abuse of discretion found in this record. The court followed

the commitment statutes, allowed the state to present a second opinion, and relied

on that second opinion to make its determination. The second doctor opined that

Appellant continued to suffer from psychosis and was mentally ill subject to

commitment.     It was up to the trier of fact to weigh the evidence and make a

judgment based on that evidence. In this case, there were two competing experts.

The first determined that Appellant was no longer mentally ill, but did not recommend

unconditional release, and gave incomplete information regarding the risk factors of

terminating commitment. The second determined that Appellant was mentally ill, did

not recommend unconditional release, and presented more thorough information

regarding the risk factors.    The trial court made its judgment based on these

competing experts. It is not up to an appellate court to second guess the trial court's

evaluation of the evidence presented at a commitment hearing.              Appellant's

assignment of error is overruled.

                                     Conclusion

       {¶21} Appellant was charged with murder but was found not guilty by reason

of insanity. He has been confined in treatment centers since 2009. Upon judicial

review of his commitment in 2014, he was examined by two psychiatrists. One of

them found Appellant to be mentally ill and subject to continued commitment.

Although there was another expert who slightly disagreed with this conclusion, the
                                                                               -11-

trial court relied primarily on the second expert opinion and continued Appellant's

commitment. The record supports the trial court's decision, and the judgment of the

trial court in this matter is affirmed.


Donofrio, P.J., concurs.

Robb, J., concurs.