from the Stark County Court of Common Pleas, Case No. 2011-
Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney By:
KATHLEEN O. TATARSKY, Assistant Prosecuting Attorney
Defendant-Appellant MICHAEL A. PARTLOW.
JUDGES: Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon.
Craig R. Baldwin, J.
Appellant, Jeremy Stutler, appeals the May 10, 2017 decision
of the Stark County Court of Common Pleas denying his request
for Level IV privileges pursuant to R.C. 2945.401. Appellee
is the state of Ohio.
OF FACTS AND THE CASE
Appellant was charged with murder in 2011, and found not
guilty by reason of insanity in the Stark County Court of
Common Pleas. The trial court committed appellant to Twin
Valley Behavioral Healthcare, a maximum security mental
health facility. In January of 2014, appellant was
transferred to Northcoast Behavioral Healthcare.
A similar request was considered by this Court in 2015. On
February 2, 2015, Dr. Joy Stankowski, M.D., the Chief
Clinical Officer of Northcoast Behavioral Healthcare authored
a letter requesting appellant be granted Level IV medical
privileges for community trips with staff/case manager
The State requested a second opinion from Dr. Arcangela Wood,
a psychologist and the Director of Psycho-Diagnostic Clinic
of Akron. Dr. Wood opined it would be reasonable for
Appellant to be granted Level IV privileges; however, she
listed a number of conditions at the end of the letter
necessary for the granting of said privileges. Both parties
stipulated to the reports at the May 4, 2015 hearing.
Following the hearing on May 4, 2015, the trial court denied
the request for a change to Level IV privileges via Judgment
Entry of May 8, 2015. We agreed "*** with the reasoning
set forth in Hubbard, supra, and [found] a trial
court retains discretion to deny a request for increased
privileges even if the evidence in opposition to the
requested modification presented by the state does not rise
to the level of clear and convincing evidence."
State v. Stutler, 5th Dist. No. 2015CA00099,
2015-Ohio-5518, ¶ 13. We concluded that the trial court
had not abused its discretion and affirmed the trial
On January 27, 2017, Dr. Stankowski delivered a letter to the
Stark County Common Pleas Court with an Application for Level
IV Privileges, completed by Sara G. West, M.D.,
attached. "The purpose of this report is to
request an advancement in movement for Mr. Stutler, from
Level III and Level IV medical, to Level III and Level IV
medical and community." The record does not clearly
describe the distinction between the two levels, though it is
clear that there are fewer restrictions on Level IV and the
intent was to allow the appellant supervised "off ground
trips that are therapeutic" as well as "other
appropriate events." After reviewing records and
information provided to her, Dr. West stated "[i]t is my
opinion with reasonable medical certainty that, in
consideration of public safety and Mr. Stutler's liberty
interests, the least restrictive setting for Mr.
Stutler's treatment is continued hospitalization at
Northcoast Behavioral Healthcare with advancement to Level IV
On February 24, 2017 the court ordered appellant to submit to
an examination by the Psycho-Diagnostic Clinic. On April 27,
2017, Arcangela S. Wood, Psy .D. of the Psycho-Diagnostic
Clinic submitted a comprehensive 30 page report after meeting
with appellant for 90 minutes on March 21, 2017. She was
aware of the plan to allow appellant Level IV privileges in
the community and she approved the plan contingent upon
adoption of several conditions to protect public safety. She
also concluded that the risk of Mr. Stutler's committing
any future violent acts was moderate, and that appellant
would experience stress with the transition of going on
supervised outings in the community and with increased
contact with community members.
The trial court conducted a hearing pursuant to R.C.
2945.401(D) on May 4, 2017. The aforementioned reports were
submitted to the court and the testimony of Dr. Wood, Dr.
West and appellant was presented to the court. At the
conclusion of the hearing the court denied the request for
Level IV privileges concluding in its entry of May 10, 2017
that "The Court is not convinced in this short time that
improvement has advanced enough to Level IV Privileges."
(Trial Court Entry, page 6). Appellant filed a notice of
appeal on June 9, 2017 and submitted two assignments of
I. THE TRIAL COURT'S DETERMINATION THAT APPELLANT SHOULD
BE DENIED A CHANGE TO LEVEL IV-COMMUNITY PRIVILEGES IS NOT
SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
II. THE TRIAL COURT HAD NO DISCRETION TO DENY THE LEVEL
CHANGE REQUESTED IN THE ABSENCE OF CLEAR AND CONVINCING
EVIDENCE INDICATING THAT THE LEVEL CHANGE SHOULD NOT BE
We review the trial court's decision for an abuse of
The nature and conditions of the insanity acquittee's
confinement are a determination which lies within the sound
discretion of the trial court. State v. Johnson
(1987), 32 Ohio St.3d 109, 112, 512 N.E.2d 652, 655-656. The
trial court may choose to reject the recommendations of both
the state and the acquittee and order the acquittee to a more
secure setting without abusing its discretion. State v.
Gladding (1991), 72 Ohio App.3d 16, 21, 593 N.E.2d 415,
417-418. Furthermore, the court does not abuse its discretion
by rejecting the recommendation of the hospital caring for
the acquittee; rather, the court is ...