334 N.E.2d 530 | Ohio Ct. App. | 1974
Defendant-appellant Will Abner (defendant) was arrested on February 13, 1970, and subsequently indicted *143
on two counts of violation of Ohio Revised Code, §
A hearing pursuant to Ohio Revised Code, §
On October 14, 1971, defendant again was returned to the same trial court2 for a hearing pursuant to Ohio Revised Code, §
Defendant appeals assigning three errors:
"I. Because the Ascherman Act is on its face, and as applied to appellant, unconstitutional any and all reference with regard to appellant's commitment to Lima State Hospital should be expunged from the official records of the State of Ohio.
"II. The State at the probation hearing below did not meet the burden of proof imposed upon it by the treatment rationale of the Ascherman Act to justify the Court's failure to grant appellant probation.
"III. Appellant was denied equal protection of the laws as guaranteed by the Fourteenth Amendment as significant differences exist between commitment and release under Ohio Revised Code §§
All three assignments of error lack merit.
"Because the Ascherman Act is on its face, and as applied to appellant, unconstitutional any and all reference with regard to appellant's commitment to Lima State Hospital should be expunged from the official records of the State of Ohio." *145
These contentions lack substance. The due process jury trial required in Duncan v. Louisiana (1968),
The defendant in Baxstrom was civilly committed after the expiration of his criminal sentence without the jury determination vouchsafed by the New York statutes to persons civilly committed whether such persons had past criminal records or not. Having satisfied his obligations for his criminal infraction his posture vis-a-vis further commitment was comparable to that of a person subjected to civil commitment, Baxstrom v. Herold,
In Specht v. Patterson,
"We held . . . that the Due Process Clause of the Fourteenth Amendment did not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when he came to determine the sentence to be imposed."
The court went on to rule that Specht had been denied due process when he was sentenced without a hearing or confrontation under the Colorado Sex Offenders' Act. But that statute provided a sentence far harsher than the maximum under the statute of his conviction. These considerations *147
clearly distinguish Specht from the present case in which the Ascherman processes were part of the sentencing alternatives provided in the procedures following a plea. Moreover, the medical conclusions generated by the Ascherman process were subject to testing in a hearing coupled with compulsory process, Ohio Revised Code, §
Obviously, the principle from the Williams case, id., has more relevance to the instant case than do the rules enunciated inBaxstrom, Specht, Cady, or Jackson.
Defendant's void for vagueness assertions under his first assignment of error are couched in traditional terms. The vice in the Ascherman Act vagueness, he seems to suggest, lies in the "treachery" concealed "either in determining what persons are included or what acts are prohibited," citing United States v.Cardiff (1952),
The weakness of defendant's vagueness claim lies in his failure to distinguish between that doctrine's applicability to criminal conduct where proscriptions require precision and its lack of relevance to medical standards in sentencing alternatives. In this case there is no assertion that the proscribed criminal conduct was too vague to satisfy constitutional requirements. Rather the defendant takes aim at the overbreadth of medical terms in the Ascherman Act.7
Perhaps the defendant could mount a tenable claim against the medical terms were he to contend that they were so general that no application of them by medical science were possible. However, he makes this point only in terms of a claimed diversity of medical opinion with respect to the definition of psychopath. Assuming this problem exists, it is not concerned with a standard to which a sick defendant is expected to conform.** Moreover, the claim of medical *148 nebulosity has no support in the evidence. Granting the desirability of medical certainty, a commendable fever for reform cannot fill gaps in the record.
The void for vagueness contention founders on both theoretical and factual grounds.
Defendant poses his objections in terms of an adversary proceeding. He is in error in his assumption that Ascherman Act examinations are adversary in nature.8 On the contrary, the proceedings are part of the sentencing alternatives. Moreover, the record reflects that the Court was responding to the request of defendant's counsel (although it was also fulfilling a statutory obligation) in ordering the examination under Ohio Revised Code §
The defendant's remaining claims have a place in proceedings determining guilt but not in a medical examination preliminary to sentencing. Confrontation and cross-examination and related rights have small purchase during psychiatric procedures. SeeUnited States v. Albright (4th Cir., 1968),
None of the defendant's attacks on the Ascherman Act under his first assignment of error have merit. This conclusion disposes of his request to have his commitment record expunged.
"The State at the probation hearing below did not meet the burden of proof imposed upon it by the treatment rationale of the Ascherman Act to justify the Court's failure to grant appellant probation."
The section of the Ascherman Act [Ohio Revised Code, §
"(A) Except for those persons disqualified for probation under section
The defendant challenges the application of the section to him. He asserts that upon his release from the hospital the trial court was required to reach negative conclusions on the factors enumerated in the statute to justify placing him in a penal institution under the original sentence rather than granting probation. In addition, the defendant argues the state has the burden of proving beyond a reasonable doubt that those factors existed which justify carrying out the original sentence.
These arguments ignore the essential nature of the power conferred by Ohio Revised Code, §
The record is exceptionally skimpy. However, it shows *151 that the court remarked at the October 14, 1971, hearing: "Well, there is nothing I can do on the basis of this report" (Tr. 4). (Emphasis added.) Counsel was present, offered no evidence, raised no objections, and did not challenge the court's conclusion. Under these circumstances the presumption of regularity attendant upon official judicial action supports the trial court action. Beyond this, the report to which reference was made is not in the record here.12 Consequently, we are unable to essay a review of the trial court's discretionary action even in those narrow circumstances which would warrant oversight to determine whether discretion has been abused.
Defendant's second assignment of error is without merit.
"Appellant was denied equal protection of the laws as guaranteed by the Fourteenth Amendment as significant differences exist between commitment and release under Ohio Revised Code §
In effect this assignment bases its challenge on the proposition that the differences between procedures for involuntary commitment for treatment and release under the Ascherman Act (after criminal conviction) and involuntary commitment and release under the Hospitalization of the Mentally Ill Act (civil commitment) constitute distinctions without relevant connection to different purposes sufficient to support the conclusion that reasonable classifications are involved. The defendant argues that because the two procedures are aimed at identical objectives, there is no justification for procedural differences. He concludes that the differences violate the right to Equal *152 Protection of the law (U.S. Constitution, Amendment XIV).
Assuming identical objectives for the two statutes, Equal Protection may be violated if differences in commitmentprocedure or differences in commitment standards discriminate against classes of persons without a reasonable justification inherent in the purposes of the classification. A basic issue in determining constitutional procedure and constitutional standards is fairness. Procedures or standards may differ without violating Equal Protection or Due Process if the procedures and standards are fair and relate to a relevant purpose in establishing the class. See Baxstrom v. Herold,
A comparison of Ohio Revised Code, §
The comparison reveals no invidious discrimination. Therefore, there is no occasion to decide whether there are differences between commitments after conviction and civil commitments of persons with no criminal history which provide a reasonable basis for different procedures and standards for involuntary hospitalization and release. In any event, equal protection concepts do not prohibit reasonable classifications to facilitate permissible police power objectives.
Under these circumstances we find that the third assignment of error is without merit.
The judgment of the court below is affirmed.
Judgment affirmed.
CORRIGAN and WASSERMAN, JJ., concur.
WASSERMAN, J., retired, was assigned to active duty under authority of Section 6(C), Article IV, Constitution.
"No person over the age of eighteen years shall assault a child under the age of sixteen years, and willfully take indecent and improper liberties with the person of such child, without committing or intending to commit the crime of rape upon such child, or willfully make improper exposures of his person in the presence of such child.
"Whoever violates this section is guilty of felonious asault [sic] and shall be fined not less than one hundred nor more than one thousand dollars or imprisoned not less than one nor more than ten years, or both."
"The Court: Well, there is nothing I can do on the basis of this report. I will sentence you to the Ohio State Reformatory and give you credit for the time spent in County Jail from September 10 [1971]. (Bracketed material supplied.)
"Mr. Wuliger: Your Honor, is it possible to give him credit from the time he entered his plea?
"The Court: I can only give him time from County Jail, about a month, and then he would be eligible before the Board in about eight months.
"Mr. Wuliger: Thank you, sir."
"For the purposes of reckoning the eligibility of such person for parole or discharge, the time of confinement under an order of indefinite commitment in accordance with such section, shall be counted as time served with good behavior under the applicable sentence."
No doubt the Adult Parole Authority knows and will exercise its statutory powers.