State v. Fitzpatrick

         [Cite as State v. Fitzpatrick, 

.]




                             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, 

, 2004-Ohio-

3167, 

. 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, 

.

       {¶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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                  OHIO FIRST DISTRICT COURT OF APPEALS



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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                  OHIO FIRST DISTRICT COURT OF APPEALS



postconviction petition asking the court to vacate the sentence up to one year from the

effective date of the statute. State v. Lawson, 

, 

,

 (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. 

 “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.”

                                  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, 

. 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, 

, 

, 

. But “a different

situation arises where a defendant intends to introduce psychiatric evidence at the

penalty phase.” 

 quoting Estelle v. Smith, 

, 

, 

 (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. 

 citing Kansas v. Cheever, 

, 

, 

 (2013), and Buchanan v. Kentucky, 

, 

, 

 (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.” 

,

quoting 

. 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. 

. 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

.

       {¶15} In State v. Goff, 

, 

, 

,

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, 

, 

 (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 

; State v. Powell, 

, 

, ¶ 35 (6th Dist.); Carter, 8th Dist. Cuyahoga No. 106690, 

.




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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.

 (a proceeding for forced medication of an incompetent defendant

is a provisional remedy); see, e.g., In re D.H., 

, 

, 

 (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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                    OHIO FIRST DISTRICT COURT OF APPEALS



          {¶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., 

, 

, 

 (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, 

, 

, 

, 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-A-0007, 2019-A-0008, 2019-A-0009 and

2019-A-0010, 

, ¶ 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, 

,

¶ 9; In re J.W., 11th Dist. Geauga No. 2009-G-2939, 

, ¶ 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, 

, 

, 

.

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, 

.

                                                                     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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